Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698929106428.pdf (New Zealand)
Reprint as at 1 July 2011 Employment Relations Act 2000 Public Act Date of assent Commencement 2000 No 24 19 August 2000 see section 2 Contents Part 1 Key provisions Title Commencement Object of this Act Good faith employment relations Parties to employment relationship to deal with each other in good faith Penalty for certain breaches of duty of good faith Part 2 Preliminary provisions Interpretation Interpretation Meaning of employee Status of examples Page 16 16 16 17 20 20 25 27 1 2 3 4 4A 5 6 6A Note Changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in this reprint.
A general outline of these changes is set out in the notes at the end of this reprint, together with other explanatory material about this reprint.

This Act is administered by the Department of Labour.
1 Employment Relations Act 2000 Reprinted as at 1 July 2011 Part 3 Freedom of association Object of this Part Voluntary membership of unions Prohibition on preference Contracts, agreements, or other arrangements inconsistent with section 8 or section 9 Undue influence Part 4 Recognition and operation of unions Object of this Part Registration of unions and related matters Application by society to register as union When society entitled to be registered as union Registration of society as union Annual return of members Cancellation of union’s registration Union’s right to represent members Union entitled to represent members’ interests Access to workplaces Workplace does not include dwellinghouse Access to workplaces Representative of union must obtain consent to enter workplace Conditions relating to access to workplaces When access to workplaces may be denied When access to workplaces may be denied on religious grounds Issue of certificate of exemption Penalty for certain acts in relation to entering workplace Union meetings Union meetings Registrar of Unions Registrar of Unions Registrar of Unions may seek directions of Authority Persons who have standing in proceedings relating to unions Offence to mislead Registrar 20A 26 27 28 29 30 2 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 5 Collective bargaining Object of this Part Good faith Good faith in bargaining for collective agreement Duty of good faith requires parties to conclude collective agreement unless genuine reason not to Providing information in bargaining for collective agreement Codes of good faith Codes of good faith Appointment of committee to recommend codes of good faith Minister may approve code of good faith not recommended by committee Amendment and revocation of code of good faith Authority or court may have regard to code of good faith Bargaining Who may initiate bargaining When bargaining may
 be initiated How bargaining initiated Employees’ attention to be drawn to initiation of bargaining When bargaining initiated One or more unions proposing to initiate bargaining with 2 or more employers for single collective agreement Terms of question for secret ballot When secret ballots required after employer initiates bargaining for single collective agreement When requirement for secret ballot does not apply Parties joining bargaining after it begins Consolidation of bargaining 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 Facilitating bargaining 50A 50B 50C 50D 50E 50F Purpose of facilitating collective bargaining Reference to Authority Grounds on which Authority may accept reference Limitation on which member of Authority may provide facilitation Process of facilitation Statements made by parties during facilitation 39 39 41 42 43 44 44 44 45 45 45 46 46 47 47 48 48 50 50 50 51 51 52 53 53 54 3 Employment Relations Act 2000 Reprinted as at 1 July 2011 50G 50H 50I Proposals made or positions reached during facilitation Recommendation by Authority Party must deal with Authority in good faith 50J 51 52 53 54 55 56 56A 57 58 59 59A 59B 59C Determining collective agreement if breach of duty of good faith Remedy for serious and sustained breach of duty of good faith in section 4 in relation to collective bargaining Collective agreements Ratification of collective agreement When collective agreement comes into force and expires Continuation of collective agreement after specified expiry date Form and content of collective agreement Deduction of union fees Application of collective agreement Application of collective agreement to subsequent parties Employee bound by only 1 collective agreement in respect of same work Employee who resigns as member of union but does not resign as employee Copy of collective agreement to be delivered to chief executive Undermining collective bargaining or collective agreement Interpretation Breach of duty of good faith
 to pass on, in certain circumstances, in individual employment agreement terms and conditions agreed in collective bargaining or in collective agreement Breach of duty of good faith to pass on, in certain circumstances, in collective agreement provisions agreed in other collective bargaining or another collective agreement Part 6 Individual employees’ terms and conditions of employment 60 60A Object of this Part Good faith in bargaining for individual employment agreement 4 54 54 55 55 56 56 57 57 58 58 59 61 61 61 62 62 64 65 66 Reprinted as at 1 July 2011 Employment Relations Act 2000 61 62 63 63A 64 65 Employee bound by applicable collective agreement may agree to additional terms and conditions of employment Employer’s obligations in respect of new employee who is not member of union Terms and conditions of employment of new employee who is not member of union Bargaining for individual employment agreement or individual terms and conditions in employment agreement Employer must retain copy of individual employment agreement or individual terms and conditions of employment Terms and conditions of employment where no collective agreement applies Deduction of union fees Fixed term employment Probationary arrangements 65A 66 67 67A When employment agreement may contain provision for trial period for 90 days or less Effect of trial provision under section 67A Unfair bargaining for individual employment agreements Remedies for unfair bargaining 67B 68 69 Part 6AA Flexible working 69AA Object of this Part 69AAA Interpretation Employee’s statutory right to make request 69AAB When employee may make request 69AAC Requirements relating to request 69AAD Limitation on frequency of requests Duties of employer 69AAE Employer must notify decision as soon as possible 69AAF Grounds for refusal of request by employer Resolving disputes 69AAG Role of Labour Inspector 69AAH Labour Inspectors and mediation 69AAI Application to Authority 69AAJ Penalty 69AAK Limitation on challenging
 employer 66 67 68 69 71 72 73 73 75 76 76 77 78 79 79 80 80 81 81 82 82 83 83 84 84 5 Employment Relations Act 2000 Reprinted as at 1 July 2011 69AAL Review of operation of Part after 2 years Review of Part Part 6A Continuity of employment if employees’ work affected by restructuring Subpart 1—Specified categories of employees Object of this subpart Interpretation 69A 69B 69C Meaning of contracting in, contracting out, and subsequent contracting 69D Meaning of new employer 69E Examples of contracting in, contracting out, and subsequent contracting Application of this subpart Notice of right to make election Employee bargaining for alternative arrangements Employee may elect to transfer to new employer Employment of employee who elects to transfer to new employer treated as continuous Terms and conditions of employment of transferring employee under fixed term employment Agreements excluding entitlements for technical redundancy not affected 69F 69G 69H 69I 69J 69K 69L 69M New employer becomes party to collective agreement that 69N 69O binds employee electing to transfer Employee who transfers may bargain for redundancy entitlements with new employer Authority may investigate bargaining and determine redundancy entitlements Subpart 2—Disclosure of costs relating to transfer of employees under proposed restructuring 69OA Object of this subpart 69OB Interpretation 69OC Disclosure of employee transfer costs information 69OD Provision of employee transfer costs information by other persons 69OE Updating disclosure of employee transfer costs information 69OF Employer who is subject to Official Information Act 1982 69OG Subpart prevails over agreement 6 84 85 85 87 88 89 92 93 93 94 95 96 97 98 98 99 100 100 101 102 103 104 104 Reprinted as at 1 July 2011 Employment Relations Act 2000 Subpart 3—Other employees 69OH Object of this subpart 69OI Interpretation 69OJ Collective agreements and individual employment 105 105 106 agreements must contain employee protection provision
 69OK Affected employee may choose whether to transfer to new 107 employer 69OL Review of operation of Part after 3 years Subpart 4—Review of Part Part 6B Bargaining fees 69P 69Q 69R Interpretation Bargaining fee clause does not come into force unless agreed to first by employer and union and then by secret ballot Employer to notify employees if bargaining fee clause agreed to 69S Which employees bargaining fee clause applies to Bargaining fee clause binding on employer and employee 69T Amount of bargaining fee 69U 69V Expiry of bargaining fee clause 69W Validity of bargaining fee clause Part 6C Breastfeeding facilities and breaks Interpretation Employer’s obligation Breastfeeding breaks additional to breaks under Part 6D 69X 69Y 69Z 69ZA Code of employment practice relating to employer’s obligation 69ZB Penalty Part 6D Rest breaks and meal breaks 69ZC Interpretation 69ZD Entitlement to rest breaks and meal breaks 69ZE When employer to provide rest breaks and meal breaks 69ZF Penalty 69ZG Relationship between Part and employment agreements 69ZH Relationship between Part and other enactments 107 108 108 109 110 110 111 111 111 111 112 112 112 113 113 113 114 115 115 115 7 Employment Relations Act 2000 Reprinted as at 1 July 2011 Part 7 Employment relations education leave Object of this Part Interpretation Minister to approve employment relations education Union entitled to allocate employment relations education leave Calculation of maximum number of days of employment relations education leave Union to notify employer of maximum number of days of employment relations education leave calculated Allocation of employment relations education leave calculated in respect of another employer Allocation of employment relations education leave to eligible employee Eligible employee proposing to take employment relations education leave Eligible employee taking employment relations education leave entitled to ordinary pay Part 8 Strikes and lockouts Object of this Part Meaning of
 strike Meaning of lockout Interpretation Lawfulness of strikes and lockouts Lawful strikes and lockouts related to collective bargaining Lawful strikes and lockouts on grounds of safety or health Effect of lawful strike or lockout Unlawful strikes or lockouts Suspension of employees during strikes Suspension of striking employees Suspension of non-striking employees where work not available during strike Basis of suspension Essential services Strikes in essential services Lockouts in essential services Reprinted as at 1 July 2011 Employment Relations Act 2000 92 Chief executive to ensure mediation services provided 128 Procedure to provide public with notice before strike or lockout in certain passenger transport services Procedure to provide public with notice before strike in certain passenger transport services Procedure to provide public with notice before lockout in certain passenger transport services Penalty for breach of section 93 or section 94 Employer’s liability for wages during lockout Employer not liable for wages during lockout Performance of duties of striking or locked out employees Performance of duties of striking or locked out employees Record of strikes and lockouts Record of strikes and lockouts 93 94 95 96 97 98 Jurisdiction of Employment Court 99 100 Jurisdiction of court in relation to torts Jurisdiction of court in relation to injunctions Part 8A Codes of employment practice and code of good faith for public health sector Codes of employment practice 100A Codes of employment practice 100B Amendment and revocation of code of practice 100C Authority or court may have regard to code of practice Code of good faith for public health sector 100D Code of good faith for public health sector 100E Amendments to or replacement of code of good faith for public health sector 100F Code of good faith for
 employment relationships in relation to provision of services by New Zealand Police 100G Amendments to or replacement of code of good faith for employment relationships in relation to provision of services by New Zealand Police Part 9 Personal grievances, disputes, and enforcement Object 101 Object of this Part 128 129 130 130 130 131 131 132 133 133 134 134 135 135 136 136 9 Employment Relations Act 2000 Reprinted as at 1 July 2011 Personal grievances Employee may pursue personal grievance under this Act 102 103 Personal grievance 103A Test of justification 104 105 Discrimination Prohibited grounds of discrimination for purposes of section 104 Exceptions in relation to discrimination Definition of involvement in activities of union for purposes of section 104 Sexual harassment Racial harassment Duress 108 109 110 110A Membership of KiwiSaver scheme or complying 106 107 superannuation fund [Repealed] Definitions relating to personal grievances Choice of procedures Personal grievance provisions only way to challenge dismissal Raising personal grievance Further provision regarding exceptional circumstances under section 114 Special provision where sexual harassment alleged Sexual or racial harassment by person other than employer Sexual or racial harassment after steps not taken to prevent repetition Presumption in discrimination cases Statement of reasons for dismissal Statements privileged Nature of personal grievance may be found to be of different type from that alleged Remedies in relation to personal grievances Remedies Remedy reduced if contributing behaviour by employee Remedy of reinstatement Provisions applying if reinstatement ordered Authority may order interim reinstatement Reimbursement Disputes Person bound by, or party to, employment agreement may pursue dispute under this Act 152
146 147 147 148 149 149 150 150 151 151 151 152 153 153 153 154 154 155 Reprinted as at 1 July 2011 Employment Relations Act 2000 Recovery of wages 130 Wages and time record 131 132 Arrears Failure to keep or produce records Penalties Jurisdiction concerning penalties Penalties for breach of employment agreement 133 134 134A Penalty for obstructing or delaying Authority investigation 135 136 Recovery of penalties Application of penalties recovered Compliance orders 137 138 Power of Authority to order compliance Further provisions relating to compliance order by Authority 139 Power of court to order compliance Further provisions relating to compliance order by court 140 140A Compliance order in relation to disclosure of employee transfer costs information 141 Enforcement of order Enforcement of order Limitation period for actions other than personal grievances 142 Limitation period for actions other than personal grievances 143 Object of this Part Part 10 Institutions Mediation services 144 Mediation services 144A Dispute resolution services Provision of mediation services 145 Access to mediation services 146 Procedure in relation to mediation services 147 148 Confidentiality 148A Minimum entitlements 149 149A Recommendation to parties 150 Decision by authority of parties Settlements 155 156 157 157 158 158 158 160 160 162 163 164 165 166 167 167 168 168 168 169 170 171 172 173 174 175 11 Employment Relations Act 2000 Reprinted as at 1 July 2011 150A Payment on resolution of problem 151 152 Mediation services not to be questioned as being Enforcement of terms of settlement agreed or authorised inappropriate Independence of mediation personnel Other mediation services Arbitration 153 154 155 Employment Relations Authority Employment Relations Authority Role of Authority Lodging of applications Duty of Authority to consider mediation 156 157 158 159 159A Duty of Authority to prioritise previously mediated 160 161 162 163 164 matters Powers of Authority Jurisdiction Application of law relating to contracts
 Restriction on Authority’s power in relation to collective agreements Application to individual employment agreements of law relating to contracts Other provisions relating to investigations of Authority 165 166 Membership of Authority 166A Role of Chief of Authority Appointment of members 167 Oath of office 168 Term of office 169 Vacation of office 170 Salaries and allowances 171 Temporary appointments 172 173 Procedure 173A Recommendation to parties 174 175 176 177 178 178A Challenge in respect of dismissal of frivolous or vexatious Determinations Seal of Authority Protection of members of Authority, etc Referral of question of law Removal to court proceedings Challenges to determinations of Authority 179 179A Limitation on challenges to certain determinations of Authority Reprinted as at 1 July 2011 Employment Relations Act 2000 179B Limitations on consideration by Employment Court of matters arising under Part 6AA Election not to operate as stay Report in relation to good faith Hearings Decision Restriction on review Staff of Authority Employment Court Employment Court Jurisdiction of court Role in relation to jurisdiction Equity and good conscience Application of other provisions Other provisions relating to proceedings of court Application to collective agreements of law relating to contracts Proceedings not to be questioned Application for review 193 194 194A Application for review by certain employees 195 196 197 198 199 Non-attendance or refusal to co-operate Contempt of court or Authority Constitution of court Registrar and officers of court Seal of court Judges of the court Appointment of Judges 200 200A Judges act on full-time basis but may be authorised to act part-time Seniority Senior Judge to act as Chief Judge in certain circumstances Judges to have immunities of
 High Court Judges Protection of Judges against removal from office Age of retirement Salaries and allowances of Judges Appointment of temporary Judges Sittings Full court Quorum and decision of court Statement of case for Court of Appeal Court may make rules Employment Relations Act 2000 Reprinted as at 1 July 2011 213 Review of proceedings before court Review of proceedings Appeals on question of law 214 214A Appeals to Supreme Court on question of law in Appeals exceptional circumstances Court of Appeal may refer appeals back for reconsideration Special provision in respect of appeals Obligation to have regard to special jurisdiction of court Other appeals Appeal to Court of Appeal against conviction or order or sentence in respect of contempt of court Appeal to Court of Appeal in respect of order on application for review Miscellaneous provisions Validation of informal proceedings, etc Documents under seal and certain signatures to be judicially noticed Joinder, waiver, and extension of time Application of Official Information Act 1982 215 216 217 218 219 220 221 222 Part 11 General provisions Labour Inspectors Labour Inspectors 223 223A Functions of Labour Inspector Enforceable undertakings 223B Enforceable undertakings 223C Enforcement of undertakings Improvement notices 223D Labour Inspector may issue improvement notice 223E Objection to improvement notice 223F 223G Withdrawal of improvement notice Penalty Demand notices Demand notice Objections to demand notice 224 225 14 212 213 214 214 215 215 216 216 216 217 217 217 218 219 219 220 221 221 221 222 223 Reprinted as at 1 July 2011 Employment Relations Act 2000 Authority to determine objection 226 227 Withdrawal of demand notice Actions to recover wages or holiday pay, etc 228 Actions by Labour Inspector Powers 229 230
 231 232 233 234 235 Powers of Labour Inspectors Entry of dwellinghouses Entry warrant Compilation of wages and time record Obligations of Labour Inspectors Circumstances in which officers, directors, or agents of company liable for minimum wages and holiday pay Obstruction 236 Representation Representation Miscellaneous provisions Regulations 237 237A Amendments to Schedule 1A 238 239 240 241 No contracting out New Schedule 3 substituted in Police Act 1958 Consequential amendments Repeals 242 243 244 245 246 247 248 249 250 251 252 Transitional provisions Enforcement of existing individual employment contracts Enforcement of existing collective employment contracts Existing collective employment contracts and collective bargaining Existing procedures in relation to disputes and personal grievances Expiration of existing collective employment contracts Existing proceedings Existing causes of action Employment Tribunal Exercise of powers of Employment Tribunal after 31 January 2001 Exercise of powers of Authority before close of 31 January 2001 Exercise by Authority of powers of Tribunal after 31 January s 1 Employment Relations Act 2000 Reprinted as at 1 July 2011 239 240 243 244 254 262 269 276 277 282 253 Existing appointments Schedule 1 Essential services Schedule 1A Employees to whom subpart 1 of Part 6A applies Schedule 1B Code of good faith for public health sector Schedule 1C Code of good faith for employment relationships in relation to provision of services by Police Schedule 2 Provisions having effect in relation to Employment Relations Authority Schedule 3 Provisions having effect in relation to Employment Court Schedule 4 New Schedule 3 of Police Act 1958 Schedule 5 Enactments amended Schedule 6 Enactments repealed Title This Act is the Employment Relations Act 2000.
Commencement This Act comes into force on 2 October 2000.
Part 1 Key provisions Object of this Act The object of this Act is— 1 2 3 16 Reprinted as at 1 July 2011 (a) Employment Relations Act 2000 Part 1 s 4 to build productive employment relationships through the promotion of good faith in all aspects of the em- ployment environment and of the employment relation- ship— (i) by recognising that employment relationships must be built not only on the implied mutual obligations of trust and confidence, but also on a legislative requirement for good faith behaviour; and by acknowledging and addressing the inherent inequality of power in employment relationships; and by promoting collective bargaining; and by protecting the integrity of individual choice; and by promoting mediation as the primary problem- solving mechanism; and by reducing the need for judicial intervention; and (ii) (iii) (iv) (v) (vi) (b) to promote observance in New Zealand of the principles underlying International Labour Organisation Conven- tion 87 on Freedom of Association, and Convention 98 on the Right to Organise and Bargain Collectively.
Section 3(a): amended, on 1 December 2004, by section 4(1) of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 3(a)(i): substituted, on 1 December 2004, by section 4(2) of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 3(a)(ii): amended, on 1 December 2004, by section 4(3) of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).
Good faith employment relations 4 (1) Parties to employment relationship to deal with each other in good faith The parties to an employment relationship specified in subsec- tion (2)— (a) must deal with each other in good faith; and (b) without limiting paragraph (a), must not, whether di- rectly or indirectly, do anything— (i) to mislead or deceive each other; or 17 Part 1 s 4 Employment Relations Act 2000 Reprinted as at 1 July 2011 (ii) that is likely to mislead or deceive each other.
(1A) The duty of good faith in subsection (1)— (a) (b) (c) is wider in scope than the implied mutual obligations of trust and confidence; and requires the parties to an employment relationship to be active and constructive in establishing and maintaining a productive employment relationship in which the par- ties are, among other things, responsive and commu- nicative; and without limiting paragraph (b), requires an employer who is proposing to make a decision that will, or is likely to, have an adverse effect on the continuation of employment of 1 or more of his or her employees to provide to the employees affected— (i) access to information, relevant to the continu- ation of the employees’ employment, about the decision; and an opportunity to comment on the information to their employer before the decision is made.
(ii) (1B) Subsection (1A)(c) does not require an employer to provide access to confidential information if there is good reason to maintain the confidentiality of the information.

(a) (1C) For the purpose of subsection (1B), good reason includes— complying with statutory requirements to maintain con- fidentiality: protecting the privacy of natural persons: protecting the commercial position of an employer from being unreasonably prejudiced.
(b) (c) The employment relationships are those between— (a) an employer and an employee employed by the em- ployer: a union and an employer: a union and a member of the union: a union and another union that are parties bargaining for the same collective agreement: a union and another union that are parties to the same collective agreement: (b) (c) (d) (e) (2) 18 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 1 s 4 (f) (g) (h) a union and a member of another union where both unions are bargaining for the same collective agree- ment: a union and a member of another union where both unions are parties to the same collective agreement: an employer and another employer where both employ- ers are bargaining for the same collective agreement.
(3) (4) Subsection (1) does not prevent a party to an employment rela- tionship communicating to another person a statement of fact or of opinion reasonably held about an employer’s business or a union’s affairs.
The duty of good faith in subsection (1) applies to the follow- ing matters: (a) bargaining for a collective agreement or for a variation of a collective agreement, including matters relating to the initiation of the bargaining: any matter arising under or in relation to a collective agreement while the agreement is in force: (b) (c) (bb) (ba) bargaining for an individual employment agreement or for a variation of an individual employment agreement: any matter arising under or in relation to an individual employment agreement while the agreement is in force: consultation (whether or not under a collective agree- ment) between an employer and its employees, includ- ing any union representing the employees, about the employees’ collective employment interests, including the effect on employees of changes to the employer’s business: a proposal by an employer that might impact on the employer’s employees, including a proposal to contract out work otherwise done by the employees or to sell or transfer all or part of the employer’s business: (d) (e) making employees redundant: (f) (g) access to a workplace by a representative of a union: communications or contacts between a union and an employer relating to any secret ballots held for the pur- poses of bargaining for a collective agreement.
The matters specified in subsection (4) are examples and do not limit subsection (1).

(5) 19 Part 1 s 4A Employment Relations Act 2000 Reprinted as at 1 July 2011 (6) It is a breach of subsection (1) for an employer to advise, or to do anything with the intention of inducing, an employee— (a) not to be involved in bargaining for a collective agree- ment; or not to be covered by a collective agreement.
(b) Section 4(1A): inserted, on 1 December 2004, by section 5(1) of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 4(1B): inserted, on 1 December 2004, by section 5(1) of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 4(1C): inserted, on 1 December 2004, by section 5(1) of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).
Section 4(4)(ba): inserted, on 1 December 2004, by section 5(2) of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 4(4)(bb): inserted, on 1 December 2004, by section 5(2) of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 4(6): added, on 1 December 2004, by section 5(3) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
4A Penalty for certain breaches of duty of good faith A party to an employment relationship who fails to comply with the duty of good faith in section 4(1) is liable to a penalty under this Act if— (a) (b) the failure was deliberate, serious, and sustained; or the failure was intended to undermine— (i) bargaining for an individual employment agree- ment or a collective agreement; or an individual employment agreement or a col- lective agreement; or an employment relationship; or (iii) (c) the failure was a breach of section 59B or section 59C.
Section 4A: inserted, on 1 December 2004, by section 6 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
(ii) Part 2 Preliminary provisions Interpretation Interpretation In this Act, unless the context otherwise requires,— 5 20 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 2 s 5 applicable collective agreement means the collective agree- ment that is binding on the relevant union and employer, at the relevant point in time in relation to an employee of the employer who is a member of the union Authority means the Employment Relations Authority estab- lished by section 156 bargaining, in relation to bargaining for a collective agree- ment,— (a) means all the interactions between the parties to the bar- (b) gaining that relate to the bargaining; and includes— (i) (ii) negotiations that relate to the bargaining; and communications or correspondence (between or on behalf of the parties before, during, or after negotiations) that relate to the bargaining chief executive means the chief executive of the department Chief Judge means the Chief Judge of the court Chief of the Authority means the Chief of the Authority who holds office under section 166(1)(a) collective agreement means an agreement that is binding on— (a) (b) (c) compliance order means an order made by the Authority or the court under section 137 or section 139 court means the Employment Court constituted under this Act coverage clause,— (a) 1 or more unions; and 1 or more employers; and 2 or more employees in relation to a collective agreement,— (i) means a provision in the agreement that specifies the work that the agreement covers, whether by reference to the work or type of work or employ- ees or types of employees; and includes a provision in the agreement that refers to named employees, or to the work or type of work done by named employees, to whom the collective agreement applies: (ii) 21 Part 2 s 5 Employment Relations Act 2000 Reprinted as at 1 July 2011 (b) in relation to a notice initiating bargaining for a collect- ive agreement, means a provision in the notice speci- fying the work that the agreement is intended to cover,
 whether by reference to the work or type of work or em- ployees or types of employees demand notice means a demand notice issued under section 224(1) department, in any provision of this Act, means the depart- ment of State that, with the authority of the Prime Minister, is for the time being responsible for the administration of that provision dispute means a dispute about the interpretation, application, or operation of an employment agreement dwellinghouse— (a) means any building or any part of a building to the ex- (b) tent that it is occupied as a residence; and in relation to a homeworker who works in a building that is not wholly occupied as a residence, excludes any part of the building not occupied as a residence (c) employee is defined in section 6 employer means a person employing any employee or em- ployees; and includes a person engaging or employing a home- worker employment agreement— (a) means a contract of service; and (b) includes a contract for services between an employer and a homeworker; and includes an employee’s terms and conditions of em- ployment in— (i) (ii) a collective agreement; or a collective agreement together with any addi- tional terms and conditions of employment; or an individual employment agreement employment relationship means any of the employment re- lationships specified in section 4(2) employment relationship problem includes a personal grievance, a dispute, and any other problem relating to or aris- ing out of an employment relationship, but does not include (iii) 22 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 2 s 5 any problem with the fixing of new terms and conditions of employment essential service means a service specified in Schedule 1 homeworker— (a) means a person who is engaged, employed, or con- tracted by any other person (in the course of that other person’s trade or business) to do work for that other person in a dwellinghouse (not being work on that dwellinghouse or fixtures, fittings,
 or furniture in it); and includes a person who is in substance so engaged, em- ployed, or contracted even though the form of the con- tract between the parties is technically that of vendor and purchaser (b) individual employment agreement means an employment agreement entered into by 1 employer and 1 employee who is not bound by a collective agreement that binds the employer intended agreement includes part of an intended agreement Judge means a Judge of the court; and includes a temporary Judge Labour Inspector means an employee of the department des- ignated under section 223 to be a Labour Inspector lockout has the meaning given to it by section 82 mediation includes mediation services provided under section 144 by the chief executive, and any other mediation services that are provided (whether by the chief executive or any other person) to help resolve employment relationship problems mediation services means the mediation services provided, under section 144, by the chief executive member of the Authority means a member of the Authority who holds office under section 166(1); and includes a tempor- ary member who holds office under section 172 minimum entitlements means wages or holiday pay or other money payable by the employer to the employee under the Minimum Wage Act 1983 or the Holidays Act 2003 Minister, in any provision of this Act, means the Minister of the Crown who, under the authority of any warrant or with the 23 Part 2 s 5 Employment Relations Act 2000 Reprinted as at 1 July 2011 authority of the Prime Minister, is for the time being respon- sible for the administration of that provision person intending to work means a person who has been of- fered, and accepted, work as an employee; and intended work has a corresponding meaning personal grievance or grievance has the meaning given to it by section 103 prescribed means prescribed by regulations made under this Act Registrar of the court means any employee of the department designated under
 section 198 to act as the Registrar of the court Registrar of Unions means the employee of the department appointed under section 27 to be the Registrar of Unions relevant Acts— (a) in sections 223A and 223B, means the Acts specified in section 223(1): in sections 223D to 223F, means the Acts specified in section 223(1), except Part 5 of this Act (b) strike has the meaning given to it by section 81 union means a union registered under Part 4 wages and time record means a wages and time record kept pursuant to section 130 workplace means a place where an employee works from time to time; and includes a place where an employee goes to do work.
Section 5 coverage clause paragraph (a): substituted, on 1 December 2004, by section 7(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 5 dwellinghouse: substituted, on 1 December 2004, by section 7(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 5 homeworker paragraph (b): amended, on 1 December 2004, by sec- tion 7(3) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
Section 5 intended agreement: inserted, on 1 April 2011, by section 4 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 5 minimum entitlements: inserted, on 1 April 2011, by section 4 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 5 relevant Acts: inserted, on 1 April 2011, by section 4 of the Employ- ment Relations Amendment Act 2010 (2010 No 125).
24 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 2 s 6 6 (1) Meaning of employee In this Act, unless the context otherwise requires, employee— (a) means any person of any age employed by an employer to do any work for hire or reward under a contract of service; and includes— (i) (ii) excludes a volunteer who— (i) a homeworker; or a person intending to work; but (b) (c) does not expect to be rewarded for work to be performed as a volunteer; and receives no reward for work performed as a vol- unteer; and (ii) (d) excludes, in relation to a film production, any of the following persons: (i) a person engaged in film production work as an actor, voice-over actor, stand-in, body double, stunt performer, extra, singer, musician, dancer, or entertainer: a person engaged in film production work in any other capacity.
(ii) (2) (1A) However, subsection (1)(d) does not apply if the person is a party to, or covered by, a written employment agreement that provides that the person is an employee.

In deciding for the purposes of subsection (1)(a) whether a per- son is employed by another person under a contract of service, the court or the Authority (as the case may be) must determine the real nature of the relationship between them.
For the purposes of subsection (2), the court or the Authority— (a) must consider all relevant matters, including any mat- ters that indicate the intention of the persons; and is not to treat as a determining matter any statement by the persons that describes the nature of their relation- ship.

(b) (3) (4) (5) Subsections (2) and (3) do not limit or affect the Real Estate Agents Act 2008 or the Sharemilking Agreements Act 1937.
The court may, on the application of a union, a Labour In- spector, or 1 or more other persons, by order declare whether the person or persons named in the application are— 25 Part 2 s 6 Employment Relations Act 2000 Reprinted as at 1 July 2011 (6) (7) (a) (b) employees under this Act; or employees or workers within the meaning of any of the Acts specified in section 223(1).
The court must not make an order under subsection (5) in re- lation to a person unless— the person— (a) (i) (ii) is the applicant; or has consented in writing to another person apply- ing for the order; and (b) the other person who is alleged to be the employer of the person is a party to the application or has an opportunity to be heard on the application.
In this section,— film means a cinematograph film, a video recording, and any other material record of visual moving images that is capable of being used for the subsequent display of those images; and includes any part of any film, and any copy or part of a copy of the whole or any part of a film film production means the production of a film or video game film production work— (a) means the following work performed, or services pro- (ii) (iii) vided, in relation to a film production: (i) work performed, or services provided, by an ac- tor, voice-over actor, stand-in, body double, stunt performer, extra, singer, musician, dancer, or en- tertainer (whether as an individual or not): pre-production work or services (whether on the set or off the set): production work or services (whether on the set or off the set): post-production work or services (whether on the set or off the set): promotional or advertising work or services (whether on the set or off the set) by a person referred to in subparagraphs (i) to (iv); but excludes work performed, or services provided, in re- spect of the production of any programme intended ini- tially for broadcast on television (iv) (v) (b) 26 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 3 s 7 video game means any video recording that is designed for use wholly or principally as a game video recording means any disc, magnetic tape, or solid state recording device containing information by the use of which 1 or more series of visual images may be produced electronic- ally and shown as a moving picture.
Section 6(1)(d): added, on 30 October 2010, by section 4(1) of the Employment Relations (Film Production Work) Amendment Act 2010 (2010 No 120).

Section 6(1A): inserted, on 30 October 2010, by section 4(2) of the Employment Relations (Film Production Work) Amendment Act 2010 (2010 No 120).

Section 6(4): amended, on 16 November 2009, by section 173 of the Real Estate Agents Act 2008 (2008 No 66).
Section 6(7): added, on 30 October 2010, by section 4(3) of the Employment Relations (Film Production Work) Amendment Act 2010 (2010 No 120).

6A Status of examples (1) In this Act, an example is only illustrative of the provision it relates to and does not limit the provision.

If an example and the provision it relates to are inconsistent, the provision prevails.

In this section, example includes any note that relates to the example.
Section 6A: inserted, on 14 September 2006, by section 5 of the Employment Relations Amendment Act 2006 (2006 No 41).
Part 3 Freedom of association Object of this Part The object of this Part is to establish that— (a) (b) employees have the freedom to choose whether or not to form a union or be members of a union for the purpose of advancing their collective employment interests; and no person may, in relation to employment issues, confer any preference or apply any undue influence, directly or indirectly, on another person because the other person is or is not a member of a union.
Compare: 1991 No 22 s 5 27 (2) (3) 7 Part 3 s 8 Employment Relations Act 2000 Reprinted as at 1 July 2011 8 Voluntary membership of unions A contract, agreement, or other arrangement between persons must not require a person— (a) to become or remain a member of a union or a particular union; or to cease to be a member of a union or a particular union; or not to become a member of a union or a particular union.
(b) (c) Compare: 1991 No 22 s 6 Prohibition on preference 9 (1) A contract, agreement, or other arrangement between persons must not confer on a person, because the person is or is not a member of a union or a particular union,— (a) any preference in obtaining or retaining employment; or any preference in relation to terms or conditions of em- ployment (including conditions relating to redundancy) or fringe benefits or opportunities for training, promo- tion, or transfer.
(b) Subsection (1) is not breached simply because an employee’s employment agreement or terms and conditions of employ- ment are different from those of another employee employed by the same employer.

To avoid doubt, this Act does not prevent a collective agree- ment containing a term or condition that is intended to recog- nise the benefits— (a) (b) of a collective agreement: arising out of the relationship on which a collective agreement is based.
Compare: 1991 No 22 s 7 Section 9(3): added, on 1 December 2004, by section 8 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Contracts, agreements, or other arrangements inconsistent with section 8 or section 9 A contract, agreement, or other arrangement has no force or effect to the extent that it is inconsistent with section 8 or sec- tion 9.
(2) (3) 10 28 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 4 s 12 Undue influence 11 (1) A person must not exert undue influence, directly or indirectly, on another person with the intention of inducing the other per- son— (a) to become or remain a member of a union or a particular union; or to cease to be a member of a union or a particular union; or not to become a member of a union or a particular union; or in the case of an individual who is authorised to act on behalf of employees, not to act on their behalf or to cease to act on their behalf; or to resign from or leave any employment on account of the fact that the other person is or, as the case may be, is not a member of a union or of a particular union.
(2) Every person who contravenes subsection (1) is liable to a penalty under this Act imposed by the Authority.
Compare: 1991 No 22 s 8 Part 4 Recognition and operation of unions 12 Object of this Part The object of this Part is— (a) to recognise the role of unions in promoting their mem- bers’ collective employment interests; and to provide for the registration of unions that are account- able to their members; and to confer on registered unions the right to represent their members in collective bargaining; and to provide representatives of registered unions with rea- sonable access to workplaces for purposes related to employment and union business.
(b) (c) (d) (e) (b) (c) (d) 29 Part 4 s 13 Employment Relations Act 2000 Reprinted as at 1 July 2011 Registration of unions and related matters Application by society to register as union 13 (1) A society that is entitled to be registered as a union may apply to the Registrar of Unions to be registered as a union under this Act.
(2) An application must be made in the prescribed manner and must be accompanied by— (a) (b) (c) a copy of the society’s certificate of incorporation under the Incorporated Societies Act 1908; and a copy of the society’s rules as registered under that Act; and a statutory declaration made by an officer of the society setting out the reasons why the society is entitled to be registered as a union.
14 When society entitled to be registered as union (1) A society is entitled to be registered as a union if— (a) (b) (c) (d) the object or, if the society has more than 1 object, an object of the society is to promote its members’ collect- ive employment interests; and the society is incorporated under the Incorporated Societies Act 1908; and the society’s rules are— (i) (ii) (iii) not unreasonable; and democratic; and not unfairly discriminatory or unfairly prejudi- cial; and not contrary to law; and (iv) the society is independent of, and is constituted and op- erates at arm’s length from, any employer.
In deciding whether a society is entitled to be registered as a union, the Registrar of Unions may rely on the statutory dec- laration made under section 13(2)(c).

Registration of society as union The Registrar of Unions must register a society as a union if the society— (2) 15 (1) 30 Reprinted as at 1 July 2011 (a) Employment Relations Act 2000 Part 4 s 18 applies, in accordance with section 13, to be registered as a union; and is entitled to be registered as a union.
(b) Immediately after registering a union, the Registrar of Unions must give a certificate of registration in the prescribed form to the union.

The certificate of registration is conclusive evidence that— (a) all the requirements of this Act relating to the registra- tion of the union have been complied with; and on and from the date of registration stated in the certifi- cate, the union is registered as a union under this Act.
(b) Annual return of members A union must deliver to the Registrar of Unions, not later than 1 June in each calendar year, an annual return of members, stating how many members it had as at 1 March in that year.
Cancellation of union’s registration The Registrar of Unions may cancel the registration of a union under this Act, but only if— (a) the union applies to the Registrar of Unions to cancel its registration; or the Authority makes an order directing the Registrar of Unions to cancel the union’s registration.

(b) The Authority may make an order for the purposes of subsec- tion (1)(b) only if the union has ceased to comply with section 14(1).
Union’s right to represent members (2) (3) 16 17 (1) (2) Union entitled to represent members’ interests 18 (1) A union is entitled to represent its members in relation to any matter involving their collective interests as employees.

This Act does not prevent a union offering different classes of membership.

(2) (3) A union may represent an employee in relation to the em- ployee’s individual rights as an employee only if the union has an authority from the employee to do so given under section 236.
31 Part 4 s 19 Employment Relations Act 2000 Reprinted as at 1 July 2011 Access to workplaces 19 Workplace does not include dwellinghouse For the purposes of sections 20 to 25, workplace does not include a dwellinghouse.

Access to workplaces 20 (1) A representative of a union is entitled, in accordance with this section and sections 20A and 21, to enter a workplace— (a) (c) (d) for purposes related to the employment of its members; or for purposes related to the union’s business; or both.
(b) (c) The purposes related to the employment of a union’s members include— (a) (b) to participate in bargaining for a collective agreement: to deal with matters concerning the health and safety of union members: to monitor compliance with the operation of a collective agreement: to monitor compliance with this Act and other Acts dealing with employment-related rights in relation to union members: with the authority of an employee, to deal with matters relating to an individual employment agreement or a proposed individual employment agreement or an indi- vidual employee’s terms and conditions of employment or an individual employee’s proposed terms and condi- tions of employment: to seek compliance with relevant requirements in any case where non-compliance is detected.
The purposes related to a union’s business include— to discuss union business with union members: (a) to seek to recruit employees as union members: (b) to provide information on the union and union member- (c) ship to any employee on the premises.
(e) (f) (2) (3) (4) A discussion in a workplace between an employee and a rep- resentative of a union, who is entitled under this section and 32 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 4 s 20A sections 20A and 21 to enter the workplace for the purpose of the discussion,— (a) must not exceed a reasonable duration; and (b) is not to be treated as a union meeting for the purposes of section 26.
(5) An employer must not deduct from an employee’s wages any amount in respect of the time the employee is engaged in a discussion referred to in subsection (4).

Compare: 1991 No 22 ss 13, 14(1) Section 20(1): amended, on 1 April 2011, by section 5 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 20(4): added, on 1 December 2004, by section 9 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
Section 20(4): amended, on 1 April 2011, by section 5 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 20(5): added, on 1 December 2004, by section 9 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

20A Representative of union must obtain consent to enter (1) (2) workplace Before entering a workplace under section 21, a representative of a union must request and obtain the consent of the employer or a representative of the employer.
If a representative of a union makes a request under subsection (1),— (a) (b) (c) the employer or representative of the employer must not unreasonably withhold consent; and the employer or representative of the employer must advise the representative of the union of the employer’s or representative of the employer’s decision as soon as is reasonably practicable but no later than the working day after the date on which the request was received; and the consent of the employer or representative of the em- ployer (as the case may be) must be treated as having been obtained if the employer or representative of the employer does not respond to the request within 2 work- ing days after the date on which the request was re- ceived.
33 Part 4 s 21 Employment Relations Act 2000 Reprinted as at 1 July 2011 (3) (4) If an employer or a representative of an employer withholds consent under subsection (2), the employer or representative of the employer must, as soon as is reasonably practicable but no later than the working day after the date of the decision, give reasons in writing for that decision to the representative of the union who made the request.
This section is subject to sections 22 and 23 (which specify when access to workplaces may be denied).

Section 20A: inserted, on 1 April 2011, by section 6 of the Employment Rela- tions Amendment Act 2010 (2010 No 125).
Conditions relating to access to workplaces 21 (1) A representative of a union may enter a workplace— (a) (b) for a purpose specified in section 20(2) if the represen- tative believes, on reasonable grounds, that a member of the union, to whom the purpose of the entry relates, is working or normally works in the workplace: for a purpose specified in section 20(3) if the represen- tative believes, on reasonable grounds, that the union’s membership rule covers an employee who is working or normally works in the workplace.
(2) A representative of a union exercising the right to enter a work- place— (a) may do so only at reasonable times during any period when any employee is employed to work in the work- place; and (b) must do so in a reasonable way, having regard to normal business operations in the workplace; and (c) must comply with any existing reasonable procedures and requirements applying in respect of the workplace that relate to— (i) (ii) safety or health; or security.
(3) A representative of a union exercising the right to enter a work- place must, at the time of the initial entry and, if requested by the employer or a representative of the employer or by a per- son in control of the workplace, at any time after entering the workplace,— (a) give the purpose of the entry; and 34 Reprinted as at 1 July 2011 (b) Employment Relations Act 2000 Part 4 s 22 produce— (i) (ii) evidence of his or her identity; and evidence of his or her authority to represent the union concerned.
(4) (5) If a representative of a union exercises the right to enter a workplace and is unable, despite reasonable efforts, to find the employer or a representative of the employer or the person in control of the workplace, the representative must leave in a prominent place in the workplace a written statement of— (a) (b) (c) (d) [Repealed] Compare: 1991 No 22 s 14(2)–(4) the identity of the person who entered the premises; and the union the person is a representative of; and the date and time of entry; and the purpose or purposes of the entry.
Section 21(5): repealed, on 1 April 2011, by section 7 of the Employment Re- lations Amendment Act 2010 (2010 No 125).

22 When access to workplaces may be denied (1) A representative of a union may be denied access to a work- place if entry to the premises or any part of the premises might prejudice— (a) (b) the security or defence of New Zealand; or the investigation or detection of offences.
(2) A certificate given in accordance with subsection (3) is con- clusive evidence that grounds exist under subsection (1) for denying entry to the premises or part of the premises.
(3) A certificate is given in accordance with this subsection if— it is given by the Attorney-General; and it certifies, in respect of the premises or part of the premises concerned, that permitting entry under section 20 might prejudice— (i) (ii) the security or defence of New Zealand; or the investigation or detection of offences.
(a) (b) Compare: 1991 No 22 s 15 35 Part 4 s 23 Employment Relations Act 2000 Reprinted as at 1 July 2011 23 When access to workplaces may be denied on religious grounds A representative of a union may be denied access to a work- place if— (a) all the employees employed in the workplace are em- ployed by an employer who holds a current certificate of exemption issued under section 24; and none of the employees employed in the workplace is a member of a union; and there are no more than 20 employees employed to work in the workplace.
(b) (c) Issue of certificate of exemption The chief executive may, for the purposes of section 23, issue a certificate of exemption to an employer who is an individual if the chief executive is satisfied that the employer is a practis- ing member of a religious society or order whose doctrines or beliefs preclude membership of any organisation or body other than the religious society or order of which the employer is a member.
The chief executive may revoke a certificate of exemption if— (a) (b) (c) the employer to whom it has been issued agrees; or it was issued in error; or the chief executive is satisfied that the employer has ceased to be a person eligible to be issued with the cer- tificate.
Penalty for certain acts in relation to entering workplace Every person is liable to a penalty, imposed by the Authority, who, without lawful excuse,— (a) contravenes section 20A(2)(a) by unreasonably with- holding consent in relation to a request by a represen- tative of a union under section 20A(1) to enter a work- place; or fails to give reasons in writing for withholding con- sent to access to a workplace in accordance with section 20A(3); or (ab) 24 (1) (2) 25 36 Reprinted as at 1 July 2011 (b) Employment Relations Act 2000 Part 4 s 26 obstructs a representative of a union in entering a work- place or in doing anything reasonably necessary for or incidental to the purpose for entering the workplace; or wilfully fails to comply with section 21.
(c) Compare: 1991 No 22 s 14(5) Section 25(a): substituted, on 1 April 2011, by section 8 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 25(ab): Relations Amendment Act 2010 (2010 No 125).
inserted, on 1 April 2011, by section 8 of the Employment Union meetings Union meetings 26 (1) An employer must allow every union member employed by the employer to attend— (a) (b) at least 1 union meeting (of a maximum of 2 hours’ duration) in the calendar year 2000; and at least 2 union meetings (each of a maximum of 2 hours’ duration) in each calendar year after the cal- endar year 2000.
(2) (3) The union must give the employer at least 14 days’ notice of the date and time of any union meeting to which subsection (1) applies.

The union must make such arrangements with the employer as may be necessary to ensure that the employer’s business is maintained during any union meeting to which subsection (1) applies, including, where appropriate, an arrangement for suf- ficient union members to remain available during the meeting to enable the employer’s operations to continue.
(4) Work must resume as soon as practicable after the meeting, but the employer is not obliged to pay any union member for a period longer than 2 hours in respect of any meeting.

(5) An employer must allow a union member employed by the employer to attend a union meeting under subsection (1) on ordinary pay to the extent that the employee would otherwise be working for the employer during the meeting.
For the purposes of subsection (5), the union must— (a) supply to the employer a list of members who attended the union meeting; and advise the employer of the duration of the meeting.

(b) (6) 37 Part 4 s 27 Employment Relations Act 2000 Reprinted as at 1 July 2011 (7) 27 (1) Every employer who fails to allow a union member to attend a union meeting in accordance with this section is liable to a penalty imposed by the Authority.
Compare: 1987 No 77 s 57 Registrar of Unions Registrar of Unions The chief executive may appoint an employee of the depart- ment to be the Registrar of Unions, and may appoint another employee of the department to be the Deputy Registrar of Unions.

(2) An employee appointed under subsection (1) may also hold (3) 28 (1) any other office or position in the department.
Subject to the control and direction of the Registrar of Unions, the Deputy Registrar of Unions has and may exercise all the powers, duties, and functions of the Registrar.

Registrar of Unions may seek directions of Authority The Registrar of Unions may apply to the Authority for direc- tions relating to the exercise of his or her powers, duties, or functions under this Part.

(2) An application must be served on all persons who, in the Registrar’s opinion, are interested in the application.
Persons who have standing in proceedings relating to unions The following persons have standing to commence or be a party to or be heard on matters within the Authority’s juris- diction that relate to a union under this Part: (a) (b) (c) (d) (e) the union: a member of the union: another union with a direct interest in the proceedings: the Registrar of Unions: an employer who is directly affected by the existence of the union or its activities: with the leave of the Authority, any other person.
(f) 29 38 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 5 s 32 30 31 Offence to mislead Registrar Every person commits an offence and is liable on conviction by the court to a fine not exceeding $5,000 who does or says anything, or omits to do or say anything, with the intention of misleading or attempting to mislead the Registrar of Unions.
Part 5 Collective bargaining Object of this Part The object of this Part is— (a) (b) (aa) to provide the core requirements of the duty of good faith in relation to collective bargaining; and to provide that the duty of good faith in section 4 re- quires parties bargaining for a collective agreement to conclude a collective agreement unless there is a gen- uine reason, based on reasonable grounds, not to; and to provide for 1 or more codes of good faith to assist the parties to understand what good faith means in collect- ive bargaining; and to recognise the view of parties to collective bargaining as to what constitutes good faith; and to promote orderly collective bargaining; and to ensure that employees confirm proposed collective bargaining for a multi-party collective agreement.
Section 31(aa): inserted, on 1 December 2004, by section 10 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
(d) (e) (c) Good faith 32 (1) Good faith in bargaining for collective agreement The duty of good faith in section 4 requires a union and an employer bargaining for a collective agreement to do, at least, the following things: (a) the union and the employer must use their best endeav- ours to enter into an arrangement, as soon as possible after the initiation of bargaining, that sets out a process for conducting the bargaining in an effective and effi- cient manner; and 39 Part 5 s 32 Employment Relations Act 2000 Reprinted as at 1 July 2011 (b) (c) (ca) (d) (e) the union and the employer must meet each other, from time to time, for the purposes of the bargaining; and the union and employer must consider and respond to proposals made by each other; and even though the union and the employer have come to a standstill or reached a deadlock about a matter, they must continue to bargain (including doing the things specified in paragraphs (b) and (c)) about any other mat- ters on which they have not reached agreement; and the union and the employer— (i) must recognise the role and authority of any per- son chosen by each to be its representative or ad- vocate; and (ii) must not (whether directly or indirectly) bargain about matters relating to terms and conditions of employment with persons whom the representa- tive or advocate are acting for, unless the union and employer agree otherwise; and (iii) must not undermine or do anything that is likely to undermine the bargaining or the authority of the other in the bargaining; and the union and employer must provide to each other, on request and in accordance with section 34, information that is reasonably necessary to support or substantiate claims or responses to claims made for the purposes of the bargaining.
Subsection (1)(b) does not require a union and an employer to continue to meet each other about proposals that have been considered and responded to.
The matters that are relevant to whether a union and an em- ployer bargaining for a collective agreement are dealing with each other in good faith include— (a) the provisions of a code of good faith that are relevant to the circumstances of the union and the employer; and the provisions of any agreement about good faith en- tered into by the union and the employer; and the proportion of the employer’s employees who are members of the union and to whom the bargaining re- lates; and (b) (c) (2) (3) 40 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 5 s 33 (4) (5) (6) 33 (1) (2) (d) any other matter considered relevant, including back- ground circumstances and the circumstances of the union and the employer.
For the purposes of subsection (3)(d), circumstances, in rela- tion to a union and an employer, include— (a) the operational environment of the union and the em- ployer; and the resources available to the union and the employer.

(b) This section does not limit the application of the duty of good faith in section 4 in relation to bargaining for a collective agreement.
To avoid doubt, this section does not prevent an employer from communicating with the employer’s employees during collect- ive bargaining (including, without limitation, the employer’s proposals for the collective agreement) as long as the commu- nication is consistent with subsection (1)(d) of this section and the duty of good faith in section 4.

Section 32(1)(ca): inserted, on 1 December 2004, by section 11 of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).
Section 32(6): added, on 1 April 2011, by section 9 of the Employment Rela- tions Amendment Act 2010 (2010 No 125).

Duty of good faith requires parties to conclude collective agreement unless genuine reason not to The duty of good faith in section 4 requires a union and an employer bargaining for a collective agreement to conclude a collective agreement unless there is a genuine reason, based on reasonable grounds, not to.
For the purposes of subsection (1), genuine reason does not include— (a) opposition or objection in principle to bargaining for, or being a party to, a collective agreement; or disagreement about including in a collective agreement a bargaining fee clause under Part 6B.

(b) Section 33: substituted, on 1 December 2004, by section 12 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
41 Part 5 s 34 Employment Relations Act 2000 Reprinted as at 1 July 2011 34 Providing information in bargaining for collective agreement (1) This section applies for the purposes of section 32(1)(e).
(2) A request by a union or an employer to the other for informa- tion must— (a) (b) be in writing; and specify the nature of the information requested in suf- ficient detail to enable the information to be identified; and specify the claim or the response to a claim in respect of which information to support or substantiate the claim or the response is requested; and specify a reasonable time within which the information is to be provided.
(c) (d) (3) A union or an employer must provide the information re- quested— (a) (b) direct to the other; or to an independent reviewer if the union or employer providing the information reasonably considers that it should be treated as confidential information.

(4) A person must not act as an independent reviewer unless ap- pointed by mutual agreement of the union and employer.
(5) As soon as practicable after receiving information under sub- section (3), an independent reviewer must— (a) decide whether and, if so, to what extent the information should be treated as confidential; and advise the union and employer concerned of the deci- sion.
(b) If an independent reviewer decides that the information should be treated as confidential, the independent reviewer must— (a) decide whether and, if so, to what extent the information supports or substantiates the claim or the response to a claim in respect of which the information is requested; and advise the union and employer concerned of the deci- sion in a way that maintains the confidentiality of the information; and (b) (6) 42 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 5 s 35 (c) answer any questions from the union or employer that requested the information, in a way that maintains the confidentiality of the information.
(7) Unless the union and employer otherwise agree, information provided under subsection (3) and advice and answers pro- vided under subsections (5) and (6)— (a) must be used only for the purposes of the bargaining concerned; and (b) must be treated as confidential by the persons conduct- ing the bargaining concerned; and (c) must not be disclosed by those persons to anyone else, including persons who would be bound by the collective agreement being bargained for.
This section does not limit or affect the Privacy Act 1993.

(8) (9) Nothing in the Official Information Act 1982 (except section 6) enables an employer that is subject to that Act to withhold information that is required under section 32(1)(e).

Codes of good faith 35 (1) (2) (3) Codes of good faith The Minister may, by notice in the Gazette,— (a) approve 1 or more codes of good faith recommended by the committee appointed under section 36: approve 1 or more codes of good faith if section 37 applies.
(b) The notice in the Gazette may, instead of setting out the code of good faith being approved, provide sufficient information to identify the code, specify the date on which it comes into force, and state where copies of the code may be obtained.
The purpose of a code of good faith is to provide guidance about the application of the duty of good faith in section 4 in relation to collective bargaining— (a) (b) (c) generally; or in relation to particular types of situations; or in relation to particular parts or areas of the employment environment.
43 Part 5 s 36 Employment Relations Act 2000 Reprinted as at 1 July 2011 36 (1) (2) (3) (4) (5) Appointment of committee to recommend codes of good faith The Minister may appoint a committee for the purpose of rec- ommending to the Minister 1 or more codes of good faith.

The membership of the committee must comprise— (a) (b) at least 1 person who represents unions; and at least 1 person who represents employers’ organisa- tions; and (c) such other persons as the Minister thinks fit to appoint.
The Minister must appoint the same number of persons under both subsection (2)(a) and subsection (2)(b).

The chairperson of the committee is the member appointed by the Minister to be the chairperson.

Subject to any directions given to it by the Minister, the com- mittee may determine its own procedure.
37 Minister may approve code of good faith not recommended by committee The Minister may approve a code of good faith under section 35(1)(b) if— (a) the committee has not recommended a code of good faith within a time specified by the Minister; or the Minister declines to approve a code of good faith recommended by the committee.

(b) Before the Minister approves a code of good faith under sec- tion 35(1)(b), the Minister may consult such persons and or- ganisations as the Minister thinks appropriate.
If the Minister declines to approve a code of good faith recom- mended by the committee, the Minister must notify the com- mittee— (a) (b) that the Minister has declined to approve the code; and of the reasons for declining to approve the code.

Amendment and revocation of code of good faith A code of good faith may be amended or revoked in the same manner as the code is approved.
(1) (2) (3) 38 44 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 5 s 41 39 Authority or court may have regard to code of good faith The Authority or court may, in determining whether or not a union and an employer have dealt with each other in good faith in bargaining for a collective agreement, have regard to a code of good faith approved under section 35 that— (a) (b) was in force at the relevant time; and in the form in which it was then in force, related to the circumstances before the Authority or the court.
Bargaining 40 Who may initiate bargaining (1) Bargaining for a collective agreement may be initiated by— 1 or more unions with 1 or more employers; or (a) 1 or more employers with 1 or more unions.

(b) (2) However, bargaining for a collective agreement may not be initiated by an employer (whether alone or with other employ- ers) unless the coverage clause will cover work (whether in whole or in part) that is or was covered by another collective agreement to which the employer is or was a party.
(2) (3) 41 When bargaining may be initiated (1) If there is no applicable collective agreement in force between a union and an employer, the union or the employer may ini- tiate bargaining with the other at any time.

Subsection (1) applies subject to section 40(2).


If there is an applicable collective agreement in force,— (a) a union must not initiate bargaining earlier than 60 days before the date on which the collective agreement ex- pires: an employer must not initiate bargaining earlier than 40 days before the date on which the collective agreement expires.
(b) (4) However, if there is more than 1 applicable collective agree- ment in force that binds 1 or more unions or 1 or more em- ployers or both that are intended to be parties to the bargain- ing, then— (a) a union must not initiate bargaining before the later of the following dates: 45 Part 5 s 42 Employment Relations Act 2000 Reprinted as at 1 July 2011 (i) (b) (ii) the date that is 120 days before the date on which the last applicable collective agreement expires: the date that is 60 days before the date on which the first applicable collective agreement expires: an employer must not initiate bargaining before the later of the following dates: (i) the date that is 100 days before the date on which the last applicable collective agreement expires: the date that is 40 days before the date on which the first applicable collective agreement expires.
For the purposes of this section, an applicable collective agree- ment is in force between a union and an employer if the agree- ment binds employees whose work is intended to come within the coverage clause in the collective agreement being bar- gained for.

Section 41(4): amended, on 1 December 2004, by section 13 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
(ii) (5) How bargaining initiated 42 (1) A union or employer initiates bargaining for a collective agree- ment by giving to the intended party or parties to the agreement a notice that complies with subsection (2).
(2) A notice complies with this subsection if— (a) (b) (c) it is in writing and signed by the union or the employer giving the notice or its duly authorised representative; and it identifies each of the intended parties to the collective agreement; and it identifies the intended coverage of the collective agreement.
Employees’ attention to be drawn to initiation of bargaining An employer that initiates bargaining or that receives a notice initiating bargaining for a collective agreement must, as soon as possible but not later than 10 days after initiating the bar- gaining or receiving the notice, draw the existence and cover- age of the bargaining, and the intended parties to it, to the at- tention of all employees (whether or not members of a union 43 46 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 5 s 45 concerned) whose work would be covered by the intended coverage clause if the collective agreement were entered into.
44 When bargaining initiated (1) Bargaining for a collective agreement is initiated,— (a) if only 1 notice is required under section 42, on the day on which the notice is given: if more than 1 notice is required under section 42, on the day on which the last notice is given.
(b) (2) 45 (1) (2) Consolidated bargaining for a single collective agreement under section 50 is initiated on the day by which all the unions concerned agree to the request from the employer to consolidate bargaining initiated by the unions.
(b) One or more unions proposing to initiate bargaining with 2 or more employers for single collective agreement This section applies to— (a) 1 union proposing to initiate bargaining with 2 or more employers for a single collective agreement: 2 or more unions proposing to initiate bargaining with 1 or more employers for a single collective agreement.
Before bargaining for the single collective agreement is ini- tiated under section 42, the union or each union (as the case may require) must hold, in accordance with its rules, separate secret ballots of its members employed by each employer in- tended to be a party to the bargaining.
(3) A secret ballot may be held only if the members of the union employed by the employer are— (a) (b) not covered by an applicable collective agreement that is in force; or covered by an applicable collective agreement that is in force and the secret ballot is held not earlier than 60 days before the time within which bargaining may be initiated by the union under section 41.
(4) The result of a secret ballot of members of the union em- ployed by an employer is determined by a simple majority of the members who are entitled to vote and who do vote.
47 Part 5 s 46 Employment Relations Act 2000 Reprinted as at 1 July 2011 (5) (6) 46 If, at the conclusion of the secret ballots, 2 or more secret bal- lots have resulted in a decision in favour of bargaining for a single collective agreement, then the union proposing to ini- tiate bargaining for a single collective agreement may initiate bargaining by giving a notice in accordance with section 42 to each employer in respect of which a secret ballot has resulted in a decision in favour of bargaining for a single collective agreement.
The notice must include the following additional information in respect of each employer whose employees voted in a secret ballot: (a) (b) the name of the employer; and the number of the employer’s employees who are mem- bers of the union; and the number of those members who voted; and the number of those members who voted in favour of bargaining for a single collective agreement.
(c) (d) Terms of question for secret ballot The question to be voted on in a secret ballot for the purposes of section 45 is— (a) whether the member is in favour of bargaining for a sin- gle collective agreement, irrespective of the employers or unions concerned; or (b) whether the member is in favour of bargaining for a single collective agreement with named employers or unions; or whether the member is in favour of bargaining for a sin- gle collective agreement except with 1 or more named employers or unions.
(c) 47 When secret ballots required after employer initiates bargaining for single collective agreement This section applies to— (a) 2 or more unions in relation to which 1 employer has initiated bargaining for a single collective agreement: 1 or more unions in relation to which 2 or more em- ployers have initiated bargaining for a single collective agreement.
(b) (1) 48 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 5 s 47 (2) A union to which subsection (1)(a) applies must hold a secret ballot of its members employed by the employer if the union considers that a majority of its members employed by the em- ployer would disagree with bargaining for a single collective agreement.
(3) A union to which subsection (1)(b) applies must hold a se- cret ballot of its members employed by an employer to which subsection (1)(b) applies if it considers that a majority of its members employed by the employer would disagree with bar- gaining for a single collective agreement.

(4) A secret ballot held under subsection (2) or subsection (3) must be held in accordance with sections 45 and 46, and those sec- tions apply with all necessary modifications.
(5) At the conclusion of a secret ballot, the union must inform the following employers of the result of the secret ballot: (a) the employer of the employees in respect of whom the secret ballot has been held; and if subsection (1)(b) applies, the other employers con- cerned.
(b) (6) At the conclusion of the secret ballots, bargaining for a single collective agreement may continue,— (a) where subsection (1)(a) applies, if the members of each of the 2 unions or of a majority of the unions, if more than 2,— (i) have voted in favour of bargaining for a single collective agreement with the employer; or are considered by their union to be in favour of bargaining for a single collective agreement with the employer; or both; or (ii) (iii) (b) where subsection (1)(b) applies, if the members of the union or of each union, if there are 2, or of a majority of the unions, if more than 2,— (i) have voted in favour of bargaining for a single collective agreement with the 2 or more employ- ers; or are considered by the union or each union, as the case may be, to be in favour of bargaining for a (ii) 49 Part 5 s 48 Employment Relations Act 2000 Reprinted as at 1 July 2011 single collective agreement with the 2 or more employers; or both.
(iii) 48 When requirement for secret ballot does not apply Sections 45, 46, and 47 do not apply to bargaining for a single collective agreement if— (a) the collective agreement is intended to replace a single collective agreement that is in force; and the parties to the bargaining are 2 or more of the same parties to the single collective agreement; and the scope of the coverage clause is not wider than the scope of the coverage clause in the single collective agreement.
(b) (c) (2) Parties joining bargaining after it begins 49 (1) A union or employer may become a party to bargaining for a collective agreement after bargaining has been initiated, but only if the requirements of this section are met.
The union or employer that wishes to become a party to the bargaining must, at the time that it seeks to become a party, meet the requirements (including but not limited to those for secret ballots) that would have applied if the union or employer had been a party at the initiation of the bargaining.

The parties to the bargaining must consent to the union or em- ployer becoming a party to the bargaining.
(3) Consolidation of bargaining This section applies if— (a) an employer receives 2 or more notices under section 42 from different unions; and the notices relate, in whole or in part, to the same type of work.

(b) The employer may, within 40 days after receiving the first no- tice, request each union concerned to consolidate the bargain- ing initiated by each notice into bargaining for a single collect- ive agreement.
50 (1) (2) 50 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 5 s 50B (3) Each union receiving a request under subsection (2) must, within 30 days after receiving the request,— (a) (b) withdraw the notice given under section 42. agree to the request; or (4) A union that does not comply with subsection (3) is to be treated as if it had withdrawn the notice given under section 42.
If all the unions concerned agree to the request, the bargaining initiated by each notice is consolidated into bargaining for a single collective agreement.

(5) Facilitating bargaining Heading: inserted, on 1 December 2004, by section 14 of the Employment Re- lations Amendment Act (No 2) 2004 (2004 No 86).
50A Purpose of facilitating collective bargaining (1) The purpose of sections 50B to 50I is to provide a process that enables 1 or more parties to collective bargaining who are hav- ing serious difficulties in concluding a collective agreement to seek the assistance of the Authority in resolving the difficul- ties.
Sections 50B to 50I do not— (a) prevent the parties from seeking assistance from an- other person in resolving the difficulties; or apply to any agreement or arrangement with the other person providing such assistance.

(b) (2) Section 50A: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
50B Reference to Authority (1) One or more matters relating to bargaining for a collective agreement may be referred to the Authority for facilitation to assist in resolving difficulties in concluding the collective agreement.

(2) A reference for facilitation— (a) may be made by any party to the bargaining or 2 or more parties jointly; and (b) must be made on 1 or more of the grounds specified in section 50C(1).
51 Part 5 s 50C Employment Relations Act 2000 Reprinted as at 1 July 2011 Section 50B: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
50C Grounds on which Authority may accept reference (1) The Authority must not accept a reference for facilitation un- less satisfied that 1 or more of the following grounds exist: (a) that— (i) (ii) (b) that— (i) (ii) (c) that— (i) (ii) (d) that— (i) (ii) in the course of the bargaining, a party has failed to comply with the duty of good faith in section 4; and the failure— (A) was serious and sustained; and has undermined the bargaining: (B) the bargaining has been unduly protracted; and extensive efforts (including mediation) have failed to resolve the difficulties that have pre- cluded the parties from entering into a collective agreement: in the course of the bargaining there has been 1 or more strikes or lockouts; and the strikes or lockouts have been protracted or acrimonious: in the course of bargaining, a party has proposed a strike or lockout; and the strike or lockout, if it were to occur, would be likely to affect the public interest substantially.
For the purposes of subsection (1)(d)(ii), a strike or lockout is likely to affect the public interest substantially if— (a) the strike or lockout is likely to endanger the life, safety, or health of persons; or the strike or lockout is likely to disrupt social, envir- onmental, or economic interests and the effects of the disruption are likely to be widespread, long-term, or ir- reversible.
(b) (2) 52 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 5 s 50E (3) The Authority must not accept a reference in relation to bar- gaining for which the Authority has already acted as a facili- tator unless— (a) circumstances relating to the bargaining have changed; or the bargaining since the previous facilitation has been protracted.

(b) Section 50C: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
50D Limitation on which member of Authority may provide facilitation A member of the Authority who facilitates collective bargain- ing must not be the member of the Authority who accepted the reference for facilitation.

Section 50D: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

50E Process of facilitation (1) The process to be followed during facilitation— (a) must be conducted in private; and (b) is the process determined by the Authority.
(2) During facilitation, the collective bargaining that the facilita- tion relates to continues subject to the process determined by the Authority.

(3) During facilitation, the Authority— is not acting as an investigative body; and (a) (b) may not exercise the powers it has for investigating mat- ters.
(4) The provision of facilitation by the Authority may not be challenged or called in question in any proceedings on the ground— (a) that the nature and content of the facilitation was in- appropriate; or that the manner in which the facilitation was provided was inappropriate.

(b) Section 50E: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
53 Part 5 s 50F Employment Relations Act 2000 Reprinted as at 1 July 2011 50F Statements made by parties during facilitation (1) A statement made by a party for the purposes of facilitation is not admissible against the party in proceedings under this Act.

(2) A party may make a public statement about facilitation only if— (a) (b) it is made in good faith; and it is limited to the process of facilitation or the progress being made.
Section 50F: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

50G Proposals made or positions reached during facilitation (1) A proposal made by a party or a position reached by parties to collective bargaining during facilitation is not binding on a party after facilitation has come to an end.

This section— (a) (b) Section 50G: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
applies to avoid doubt; and is subject to any agreement of the parties.

(2) 50H Recommendation by Authority (1) While assisting parties to bargaining for a collective agree- ment, the Authority may make 1 or more recommendations about— (a) the process the parties should follow to reach agree- ment; or the provisions of the collective agreement the parties should conclude; or both.

(c) The Authority may give public notice of a recommendation in such manner as the Authority determines.
(b) (2) (3) A recommendation made by the Authority is not binding on a party, but a party must consider a recommendation before deciding whether to accept the recommendation.

Section 50H: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
54 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 5 s 50J 50I Party must deal with Authority in good faith During facilitation, a party to bargaining for a collective agree- ment must deal with the Authority in good faith.

Section 50I: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
Determining collective agreement if breach of duty of good faith Heading: inserted, on 1 December 2004, by section 14 of the Employment Re- lations Amendment Act (No 2) 2004 (2004 No 86).
50J Remedy for serious and sustained breach of duty of good faith in section 4 in relation to collective bargaining (1) A party to bargaining for a collective agreement may apply, on the grounds specified in subsection (3), to the Authority for a determination fixing the provisions of the collective agreement being bargained for.
The Authority may fix the provisions of the collective agree- ment being bargained for if it is satisfied that— (a) (b) The grounds are that— (a) the grounds in subsection (3) have been made out; and it is appropriate, in all the circumstances, to do so.
(3) (2) has occurred in relation to the bargaining; and a breach of the duty of good faith in section 4— (i) (ii) was sufficiently serious and sustained as to sig- nificantly undermine the bargaining; and all other reasonable alternatives for reaching agreement have been exhausted; and fixing the provisions of the collective agreement is the only effective remedy for the party or parties affected by the breach of the duty of good faith.
(b) (c) (4) (5) The Authority may make a determination under this section whether or not any penalty for a breach of good faith has been awarded under section 4A in relation to the same bargaining and whether or not the breach is the same breach.
The effect of a determination of the Authority fixing the provi- sions of a collective agreement is to make the collective agree- ment binding and enforceable as if it had been— ratified as required by section 51; and (a) 55 Part 5 s 51 Employment Relations Act 2000 Reprinted as at 1 July 2011 (6) (7) signed by the parties under section 54(1)(b).

(b) Section 59 applies to the determination as if it were a collective agreement.
If the bargaining for the collective agreement was subject to facilitation under sections 50A to 50I, the member of the Au- thority who makes a determination under this section must not be the member of the Authority who conducted the facilitation if a party to the bargaining objects.

Section 50J: inserted, on 1 December 2004, by section 14 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
Collective agreements Ratification of collective agreement 51 (1) A union must not sign a collective agreement or a variation of it unless the agreement or variation has been ratified in ac- cordance with the ratification procedure notified under subsec- tion (2).
(2) At the beginning of bargaining for a collective agreement or a variation of it, a union must notify the other intended party or parties to the collective agreement of the procedure for ratifi- cation by the employees to be bound by it that must be com- plied with before the union may sign the collective agreement or variation of it.
52 When collective agreement comes into force and expires (1) A collective agreement comes into force on— (a) (b) the date specified in the agreement as the date on which it comes into force; or if no such date is specified, the date on which the last party to the agreement, or its duly authorised represen- tative, signed the agreement.

(2) A collective agreement may provide that 1 or more of its pro- visions have effect from 1 or more dates before or after the date on which the agreement comes into force.
(3) A collective agreement expires on the close of the earliest of the following dates: (a) the date specified in the agreement as the date on which the agreement expires: 56 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 5 s 54 (b) (c) the date on which an event occurs, being an event that is specified by the agreement as an event on the occurrence of which the agreement expires: the date that is the third anniversary of the agreement coming into force.
(4) Subsection (3) applies subject to section 53.

53 Continuation of collective agreement after specified expiry date (1) A collective agreement that would otherwise expire as pro- if subsection (2) is complied with; and for the period specified in subsection (3).

vided in section 52(3) continues in force— (a) (b) This subsection is complied with if the union initiated collect- ive bargaining before the collective agreement expired and for the purpose of replacing the collective agreement.
The period is the period (not exceeding 12 months) during which bargaining continues for a collective agreement to re- place the collective agreement that has expired.

(2) (3) Form and content of collective agreement 54 (1) A collective agreement has no effect unless— (a) (b) it is in writing; and it is signed by each union and employer that is a party to the agreement.

(2) A collective agreement may contain such provisions as the parties to the agreement mutually agree on.
(3) However, a collective agreement— (a) must contain— (i) (ii) (iii) (iv) a coverage clause; and [Repealed] a plain language explanation of the services available for the resolution of employment rela- tionship problems, including a reference to the period of 90 days in section 114 within which a personal grievance must be raised; and a clause providing how the agreement can be varied; and 57 Part 5 s 55 Employment Relations Act 2000 Reprinted as at 1 July 2011 (v) the date on which the agreement expires or an event on the occurrence of which the agreement is to expire; and (b) must not contain anything— (i) (ii) contrary to law; or inconsistent with this Act.
Section 54(3)(a)(ii): repealed, on 1 December 2004, by section 15 of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

Deduction of union fees 55 (1) A collective agreement is to be treated as if it contains a provi- sion that requires an employer that is a party to the agreement to deduct, with the consent of a union member, the member’s union fee from the member’s salary or wages on a regular basis during the year.
(2) A collective agreement may exclude or vary the effect of sub- section (1).

(3) Union fees deducted from a member’s salary or wages must be paid to the union concerned in accordance with any arrange- ment agreed with the union.
Application of collective agreement 56 (1) A collective agreement that is in force binds and is enforceable by— (a) (b) the union and the employer that are the parties to the agreement; and employees— (i) who are employed by an employer that is a party to the agreement; and (ii) who are or become members of a union that is a party to the agreement; and (iii) whose work comes within the coverage clause in the agreement.
(1A) However, an employee who is bound by a collective agree- ment and who holds a minimum wage exemption permit under section 8 of the Minimum Wage Act 1983 may be paid wages at the rate specified in the permit,— (a) while the permit is in force; and 58 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 5 s 56A (2) (3) (b) if the union that is a party to the collective agreement agrees.
If the registration of a union that is a party to a collective agree- ment is cancelled or the union ceases to be an incorporated so- ciety, the collective agreement continues to bind the employer or employers who are parties to the agreement, and the mem- bers of the union who were bound by the collective agreement immediately before the cancellation of the union’s registration or the cessation of the union as an incorporated society.
If the union’s registration is cancelled as a result of the union’s amalgamation with 1 or more other unions, the collective agreement binds the amalgamated union.

Section 56(1A): inserted, on 1 December 2004, by section 16 of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 56(1A): amended, on 28 March 2007, by section 5(1) of the Minimum Wage Amendment Act 2007 (2007 No 12).
56A Application of collective agreement to subsequent parties (1) An employer who is not a party to a collective agreement may (c) (b) become a party to the collective agreement if— (a) the agreement provides for an employer to become a party to the agreement after it has been signed by the original parties to the agreement; and the work of some or all of the employer’s employees comes within the coverage clause in the agreement; and the employees referred to in paragraph (b) are not bound by another collective agreement in respect of their work for the employer; and the employer notifies all the parties to the agreement in accordance with subsection (5) that the employer pro- poses to become a party to the agreement.
(2) On the day after the day on which all parties to the collective agreement have been notified in accordance with subsection (5),— (a) (d) the employer becomes a party to the collective agree- ment; and the collective agreement also binds and is enforceable by— (i) the employer: (b) 59 (b) (c) (d) (b) Part 5 s 56A Employment Relations Act 2000 Reprinted as at 1 July 2011 (ii) employees— (A) who are employed by the employer; and (B) who are or become members of a union that is a party to the agreement; and (C) whose work comes within the coverage clause in the agreement.
(3) A union that is not a party to a collective agreement may be- come a party to the collective agreement if— (a) the agreement provides for a union to become a party to the agreement after it has been signed by the original parties to the agreement; and the union has members doing work that comes within the coverage clause of the collective agreement; and as a result of a secret ballot of those members, a major- ity of them who are entitled to vote and do vote are in favour of the union becoming a party to the collective agreement; and the union notifies all the parties to the collective agree- ment in accordance with subsection (5) that the union proposes to become a party to the agreement.
(4) On the day after the day on which all parties to the collective agreement have been notified in accordance with subsection (5),— (a) the union becomes a party to the collective agreement; and the collective agreement also binds and is enforceable by— (i) (ii) the union: employees— (A) who are employed by an employer that is a party to the agreement; and (B) who are or become members of the union; and (C) whose work comes within the coverage clause in the agreement.
For the purposes of this section, a party to a collective agree- ment is notified— (a) when the notice is given to the party; or (5) 60 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 5 s 59 (6) 57 (b) if the notice is posted to the party, on the seventh day after the day on which the notice is posted.

For the purposes of subsection (1)(b) and (c), employees in- cludes persons whom the employer might employ in the future.
Section 56A: inserted, on 1 December 2004, by section 17 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Employee bound by only 1 collective agreement in respect of same work If an employee is a member of more than 1 union, the em- ployee is bound by only 1 collective agreement covering the same work done by the employee, being the collective agreement resulting from the bargaining first initiated which covered the employee’s work.
58 Employee who resigns as member of union but does not resign as employee (1) A member of a union who is bound by a collective agreement and who resigns as a member of the union but does not resign from his or her employment, may not be subject to any other bargaining for a collective agreement or bound by any other collective agreement until the 60th day before the expiry date of the collective agreement binding on the member before re- signing as a member of the union.
For the purposes of subsection (1), the expiry date of a col- lective agreement is determined under section 52(3) without taking section 53 into account.

(2) 59 (1) (2) Copy of collective agreement to be delivered to chief executive The parties to a collective agreement must ensure that, as soon as practicable after they enter into the agreement, a copy of the agreement is delivered to the chief executive.
The copy of the agreement delivered to the chief executive must include any document referred to, or incorporated by reference, in the collective agreement, unless the document is publicly available.

61 Part 5 s 59A Employment Relations Act 2000 Reprinted as at 1 July 2011 (3) Nothing in the Official Information Act 1982 applies to copies of collective agreements delivered to the chief executive under subsection (1).
The information contained in the copies of collective agree- ments delivered to the chief executive under subsection (1) must be used only for statistical or analytical purposes.

(4) Undermining collective bargaining or collective agreement Heading: inserted, on 1 December 2004, by section 18 of the Employment Re- lations Amendment Act (No 2) 2004 (2004 No 86).
59A Interpretation In sections 59B and 59C, reached, in relation to a term or con- dition in bargaining for a collective agreement, means a term or condition that the parties have agreed or accepted should be a term or condition of the collective agreement if the agree- ment is concluded and ratified.

Section 59A: inserted, on 1 December 2004, by section 18 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
59B Breach of duty of good faith to pass on, in certain (1) circumstances, in individual employment agreement terms and conditions agreed in collective bargaining or in collective agreement It is not a breach of the duty of good faith in section 4 for an employer to agree that a term or condition of employment of an employee who is not bound by a collective agreement should be the same or substantially the same as a term or condition in a collective agreement that binds the employer.
(2) However, it is a breach of the duty of good faith in section 4 for an employer to do so if— (a) the employer does so with the intention of undermining the collective agreement; and the effect of the employer doing so is to undermine the collective agreement.
(b) It is not a breach of the duty of good faith in section 4 for an employer to agree that a term or condition of employment of an employee should be the same or substantially the same (3) 62 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 5 s 59B as a term or condition reached in bargaining for a collective agreement.
(4) However, it is a breach of the duty of good faith in section 4 for an employer to do so if— (a) the employer does so with the intention of undermining the collective bargaining; or the effect of the employer doing so is to undermine the collective bargaining.

(b) (5) (6) (7) (8) It is not a breach of the duty of good faith in section 4 if any- thing referred to in subsection (2) or subsection (4) is done with the agreement of the union concerned.
In determining whether subsection (2)(a) and (b) or subsection (4)(a) or (b) applies, the following matters must be taken into account: (a) whether the employer bargained with the employee be- fore they agreed on the term or condition of employ- ment: (c) (b) whether the employer consulted the union in good faith before agreeing to the term or condition of employment: the number of the employer’s employees bound by the collective agreement or covered by the collective bar- gaining compared to the number of the employer’s em- ployees not bound by the collective agreement or not covered by the collective bargaining: how long the collective agreement has been in force: the application of section 63.
(d) (e) Subsection (6) does not limit the matters that may be taken into account for the purposes of subsection (2)(a) and (b) or subsection (4)(a) or (b).

Every employer who commits a breach of the duty of good faith under this section is liable to a penalty under this Act.

Section 59B: inserted, on 1 December 2004, by section 18 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
63 Part 5 s 59C Employment Relations Act 2000 Reprinted as at 1 July 2011 59C Breach of duty of good faith to pass on, in certain (1) circumstances, in collective agreement provisions agreed in other collective bargaining or another collective agreement It is not a breach of the duty of good faith in section 4 for an employer to conclude a collective agreement that contains 1 or more provisions that are the same or substantially the same as provisions in another collective agreement to which the em- ployer is a party.
(2) However, it is a breach of the duty of good faith in section 4 for an employer to do so if— (a) the intention of the employer is to undermine the other collective agreement; and the effect of the employer doing so is to undermine the other collective agreement.
(b) (3) It is not a breach of the duty of good faith in section 4 for an employer to conclude a collective agreement that contains 1 or more provisions that are the same or substantially the same as provisions reached in bargaining for another collective agree- ment.
(4) However, it is a breach of the duty of good faith in section 4 for an employer to do so if— (a) the employer does so with the intention of undermining the other collective bargaining; or the effect of the employer doing so is to undermine the other collective bargaining.

(b) It is not a breach of the duty of good faith in section 4 if any- thing referred to in subsection (2) or subsection (4) is done with the agreement of the parties to the other collective agree- ment or collective bargaining.
In determining whether subsection (2)(a) and (b) or subsection (4)(a) or (b) applies, the following matters must be taken into account: (a) whether the employer and union bargained before agreeing on the provision: (b) whether the employer and union consulted, in good faith, the parties to the other collective agreement or collective bargaining: (5) (6) 64 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6 s 60 (7) (8) 60 (c) (d) the number of the employer’s employees bound by the collective agreement or covered by the collective bargaining compared to the number of the employer’s employees bound by the other collective agreement or covered by the other collective bargaining: how long the other collective agreement has been in force.
Subsection (4) does not limit the matters that may be taken into account for the purposes of subsection (2)(a) and (b) or subsection (4)(a) or (b).

Every employer who commits a breach of the duty of good faith under this section is liable to a penalty under this Act.

Section 59C: inserted, on 1 December 2004, by section 18 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
Part 6 Individual employees’ terms and conditions of employment Object of this Part The object of this Part is— (a) (b) (c) to specify the rules for determining the terms and con- ditions of an employee’s employment; and to require new employees, whose terms and conditions of employment are not determined with reference to a collective agreement, to be given sufficient information and an adequate opportunity to seek advice before en- tering into an individual employment agreement; and to recognise that, in relation to individual employees and their employers, good faith behaviour is— (i) promoted by providing protection against unfair bargaining; and required when entering into and varying indi- vidual employment agreements; and consistent with, but not limited to, the implied term of mutual trust and confidence in the rela- tionship between employee and employer.
(ia) (ii) Section 60(c)(ia): inserted, on 1 December 2004, by section 19(1) of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

65 Part 6 s 60A Employment Relations Act 2000 Reprinted as at 1 July 2011 Section 60(c)(ii): amended, on 1 December 2004, by section 19(2) of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).
60A Good faith in bargaining for individual employment agreement The matters that are relevant to whether an employee and em- ployer bargaining for an individual employment agreement are dealing with each other in good faith include the circumstances of the employee and employer.

For the purposes of subsection (1), circumstances, in relation to an employee and an employer, include— (a) the operational environment of the employee and em- ployer; and (b) the resources available to the employee and employer.
Section 60A: inserted, on 1 December 2004, by section 20 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
Employee bound by applicable collective agreement may agree to additional terms and conditions of employment The terms and conditions of employment of an employee who is bound by an applicable collective agreement may include any additional terms and conditions that are— (a) mutually agreed to by the employee and the employer, whether before, on, or after the date on which the em- ployee became bound by the collective agreement; and not inconsistent with the terms and conditions in the collective agreement.
(b) If the applicable collective agreement expires or the employee resigns from the union that is bound by the agreement,— (a) the employee is employed under an individual employ- ment agreement based on the collective agreement and any additional terms and conditions agreed under sub- section (1); and the employee and employer may, by mutual agreement, vary that individual employment agreement as they think fit.
(b) (1) (2) 61 (1) (2) 66 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6 s 62 62 (1) Employer’s obligations in respect of new employee who is not member of union This section— (a) applies to a new employee who— (i) (ii) is not a member of a union that is a party to a collective agreement that covers the work to be done by the employee; and enters into an individual employment agreement with an employer that is a party to a collective agreement that covers the work to be done by the employee; but (b) (ii) does not apply to an employee who— (i) resigns as a member of a union and enters into an individual employment agreement with the same employer; or enters into a new individual employment agree- ment with the same employer.
(1A) For the purposes of subsection (1), a collective agreement that includes a coverage clause referring to named employees, or the work done by named employees, to whom the collective agreement applies, must be treated as covering the work or type of work done by the named employees (whether done by those employees or any other employees).
(2) At the time when the employee enters into the individual em- ployment agreement with an employer, the employer must— (a) inform the employee— (i) (ii) (iii) (iv) (v) that the collective agreement exists and covers work to be done by the employee; and that the employee may join the union that is a party to the collective agreement; and about how to contact the union; and that, if the employee joins the union, the em- ployee will be bound by the collective agree- ment; and that, during the first 30 days of the employee’s employment, the employee’s terms and condi- tions of employment comprise— (A) the terms and conditions in the collective agreement that would bind the employee if 67 Part 6 s 63 Employment Relations Act 2000 Reprinted as at 1 July 2011 (B) the employee were a member of the union; and any additional terms and conditions mu- tually agreed to by the employee and employer that are not inconsistent with the terms and conditions in the collective agreement; and (b) (c) give the employee a copy of the collective agreement; and if the employee agrees, inform the union as soon as practicable that the employee has entered into the in- dividual employment agreement with the employer.
(3) If the work to be done by the employee is covered by more than 1 collective agreement, the employer must— (a) comply with subsection (2) in relation to the collective agreement that binds more of the employer’s employ- ees in relation to the work the new employee will be performing than any of the other collective agreements; and inform the employee of the existence of the other agree- ment or agreements.
(b) (4) Every employer who fails to comply with this section is liable to a penalty imposed by the Authority.

Section 62(1)(a): substituted, on 1 December 2004, by section 21(1) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 62(1A): inserted, on 1 December 2004, by section 21(2) of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).
Section 62(3)(a): amended, on 1 December 2004, by section 21(3) of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

Terms and conditions of employment of new employee who is not member of union The terms and conditions of employment of an employee to whom section 62 applies are determined in accordance with subsections (2) to (5).
For the first 30 days after the employee enters into an indi- vidual employment agreement, the employee’s terms and con- ditions of employment comprise— 63 (1) (2) 68 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6 s 63A (a) (b) the terms and conditions in the collective agreement that would bind the employee if the employee were a mem- ber of the union; and any additional terms and conditions mutually agreed to by the employee and employer that are not inconsistent with the terms and conditions in the collective agree- ment.
(3) (2A) However, the employee’s terms and conditions of employment do not include any bargaining fee payable under Part 6B.

If the work to be done by the employee is covered by more than 1 collective agreement, subsection (2)(a) applies to the collect- ive agreement that binds more of the employer’s employees in relation to the work the employee will be performing than any of the other collective agreements.
(4) No term or condition of employment may be expressed to alter automatically after the 30-day period to be inconsistent with the collective agreement.

(6) (5) After the 30-day period expires, the employee and the em- ployer may, by mutual agreement, vary the individual employ- ment agreement as they think fit.
For an employee who holds a minimum wage exemption per- mit under section 8 of the Minimum Wage Act 1983, the terms and conditions under subsection (2) are subject to the terms of the permit relating to the wages to be paid.

Section 63(2A): inserted, on 1 December 2004, by section 22(1) of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 63(3): amended, on 1 December 2004, by section 22(2) of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).
Section 63(6): added, on 1 December 2004, by section 22(3) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 63(6): amended, on 28 March 2007, by section 5(1) of the Minimum Wage Amendment Act 2007 (2007 No 12).
63A Bargaining for individual employment agreement or (1) individual terms and conditions in employment agreement This section applies when bargaining for terms and conditions of employment in the following situations: (a) under section 61(1), in relation to additional terms and conditions to the applicable collective agreement: 69 Part 6 s 63A Employment Relations Act 2000 Reprinted as at 1 July 2011 (b) (c) (d) (e) (f) (g) (h) (b) (c) (d) under section 61(2), in relation to— (i) additional terms and conditions to the collective agreement on which the individual employment agreement is based; and variations to the individual employment agree- ment in subparagraph (i): (ii) under section 63(2), in relation to additional terms and conditions for the first 30 days of an individual employ- ment agreement: under section 63(5), in relation to variations to terms and conditions of an individual employment agreement after the 30-day period: in relation to terms and conditions of an individual em- ployment agreement for an employee if no collective agreement covers the work done, or to be done, by the employee: where a fixed term of employment, or probationary or trial period of employment, is proposed: under section 69M or section 69N in relation to em- ployee protection provisions in individual employment agreements: under section 69I in relation to redundancy entitlements with a new employer.
The employer must do at least the following things: (a) provide to the employee a copy of the intended agree- ment under discussion; and advise the employee that he or she is entitled to seek independent advice about the intended agreement; and give the employee a reasonable opportunity to seek that advice; and consider any issues that the employee raises and re- spond to them.

Every employer who fails to comply with this section is liable to a penalty imposed by the Authority.
Failure to comply with this section does not affect the validity of the employment agreement between the employee and the employer.

(2) (3) (4) 70 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6 s 64 (5) (6) (7) The requirements imposed by this section are in addition to any requirements that may be imposed under any provision in this Act.
For the purpose of subsection (1)(e), a collective agreement that includes a coverage clause referring to named employees, or the work done by named employees, to whom the collective agreement applies, must be treated as covering the work or type of work done by the named employees (whether done by those employees or any other employees).

In this section, employee includes a prospective employee.
Section 63A: inserted, on 1 December 2004, by section 23 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 63A(2)(a): amended, on 1 April 2011, by section 10(1) of the Employ- ment Relations Amendment Act 2010 (2010 No 125).

Section 63A(2)(b): amended, on 1 April 2011, by section 10(2) of the Employ- ment Relations Amendment Act 2010 (2010 No 125).
64 Employer must retain copy of individual employment agreement or individual terms and conditions of employment (2) (1) When section 63A applies, the employer must retain a signed copy of the employee’s individual employment agreement or the current terms and conditions of employment that make up the employee’s individual terms and conditions of employ- ment (as the case may be).
If an employer has provided an employee with an intended agreement under section 63A(2)(a), the employer must retain a copy of that intended agreement even if the employee has not— (a) (b) signed the intended agreement; or agreed to any of the terms and conditions specified in the intended agreement.
(3) If requested by the employee, the employer must, as soon as is reasonably practicable, provide the employee with a copy of the employee’s— (a) individual employment agreement or current terms and conditions of employment retained under subsection (1); or intended agreement retained under subsection (2).
(b) 71 Part 6 s 65 Employment Relations Act 2000 Reprinted as at 1 July 2011 (6) 65 (1) (4) An employer who fails to comply with subsection (1), (2), or (3) is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority.

Before bringing an action under subsection (4), the Labour Inspector must— (a) (5) give the employer written notice of the breach of this section; and give the employer 7 working days to remedy the breach.
(b) To avoid doubt, an intended agreement must not be treated as the employee’s employment agreement if the employee has not— (a) (b) signed the intended agreement; or agreed to any of the terms and conditions specified in the intended agreement.

Section 64: substituted, on 1 July 2011, by section 11 of the Employment Re- lations Amendment Act 2010 (2010 No 125).
Terms and conditions of employment where no collective agreement applies The individual employment agreement of an employee whose work is not covered by a collective agreement that binds his or her employer— (a) must be in writing; and (b) may contain such terms and conditions as the employee and employer think fit.
(2) However, the individual employment agreement— (a) must include— (i) (ii) (iii) (iv) (v) (vi) the names of the employee and employer con- cerned; and a description of the work to be performed by the employee; and an indication of where the employee is to perform the work; and an indication of the arrangements relating to the times the employee is to work; and the wages or salary payable to the employee; and a plain language explanation of the services available for the resolution of employment rela- tionship problems, including a reference to the 72 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6 s 66 period of 90 days in section 114 within which a personal grievance must be raised; and (b) must not contain anything— (i) (ii) contrary to law; or inconsistent with this Act.
(3) To determine for the purposes of subsection (1) whether the work of an employee is covered by a collective agreement that binds the employer, a collective agreement that includes a coverage clause referring to named employees, or the work or type of work done by named employees, to whom the collect- ive agreement applies, must be treated as covering the work or type of work done by the named employees (whether done by those employees or any other employees).
(4) An employer who fails to comply with this section is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority.

Section 65(3): added, on 1 December 2004, by section 25 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 65(4): added, on 1 April 2011, by section 12 of the Employment Rela- tions Amendment Act 2010 (2010 No 125).
65A Deduction of union fees (1) An individual employment agreement of an employee who is a member of a union is to be treated as if it contains a provi- sion that requires the employee’s employer to deduct, with the consent of the employee, the employee’s union fee from the employee’s salary or wages on a regular basis during the year.

(2) An individual employment agreement may exclude or vary the effect of subsection (1).
(3) Union fees deducted from an employee’s salary or wages under subsection (1) must be paid to the union concerned in accordance with any arrangement agreed with the union.

Section 65A: inserted, on 1 December 2004, by section 26 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
Fixed term employment 66 (1) An employee and an employer may agree that the employment of the employee will end— (a) at the close of a specified date or period; or 73 Part 6 s 66 Employment Relations Act 2000 Reprinted as at 1 July 2011 (2) (3) (4) (5) on the occurrence of a specified event; or at the conclusion of a specified project.
(b) (c) Before an employee and employer agree that the employment of the employee will end in a way specified in subsection (1), the employer must— (a) have genuine reasons based on reasonable grounds for specifying that the employment of the employee is to end in that way; and advise the employee of when or how his or her employ- ment will end and the reasons for his or her employment ending in that way.
(b) The following reasons are not genuine reasons for the purposes of subsection (2)(a): (a) to exclude or limit the rights of the employee under this Act: to establish the suitability of the employee for perman- ent employment: to exclude or limit the rights of an employee under the Holidays Act 2003.
(b) (c) If an employee and an employer agree that the employment of the employee will end in a way specified in subsection (1), the employee’s employment agreement must state in writing— the way in which the employment will end; and (a) (b) the reasons for ending the employment in that way.
Failure to comply with subsection (4), including failure to comply because the reasons for ending the employment are not genuine reasons based on reasonable grounds, does not affect the validity of the employment agreement between the employee and the employer.
(6) However, if the employer does not comply with subsection (4), the employer may not rely on any term agreed under subsec- tion (1)— (a) to end the employee’s employment if the employee elects, at any time, to treat that term as ineffective; or as having been effective to end the employee’s employ- ment, if the former employee elects to treat that term as ineffective.

(b) Section 66(3)(c): added, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).
74 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6 s 67 Section 66(4): added, on 1 December 2004, by section 27 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 66(5): added, on 1 December 2004, by section 27 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 66(6): added, on 1 December 2004, by section 27 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
Probationary arrangements 67 (1) Where the parties to an employment agreement agree as part of the agreement that an employee will serve a period of pro- bation after the commencement of the employment,— (a) the fact of the probation period must be specified in writing in the employment agreement; and neither the fact that the probation period is specified, nor what is specified in respect of it, affects the appli- cation of the law relating to unjustifiable dismissal to a situation where the employee is dismissed in reliance on that agreement during or at the end of the probation period.
(b) (2) Failure to comply with subsection (1)(a) does not affect the validity of the employment agreement between the parties.

(3) However, if the employer does not comply with subsection (1)(a), the employer may not rely on any term agreed under subsection (1) that the employee serve a period of probation if the employee elects, at any time, to treat that term as ineffec- tive.

Section 67(1): amended, on 1 March 2009, by section 6 of the Employment Relations Amendment Act 2008 (2008 No 106).
Section 67(1)(a): amended, on 1 March 2009, by section 6 of the Employment Relations Amendment Act 2008 (2008 No 106).

Section 67(1)(b): amended, on 1 March 2009, by section 6 of the Employment Relations Amendment Act 2008 (2008 No 106).

Section 67(2): added, on 1 December 2004, by section 28 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 67(3): added, on 1 December 2004, by section 28 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
Section 67(3): amended, on 1 March 2009, by section 6 of the Employment Relations Amendment Act 2008 (2008 No 106).

75 Part 6 s 67A Employment Relations Act 2000 Reprinted as at 1 July 2011 67A When employment agreement may contain provision for trial period for 90 days or less (1) An employment agreement containing a trial provision, as de- fined in subsection (2), may be entered into by an employee, as defined in subsection (3), and an employer.
Trial provision means a written provision in an employment agreement that states, or is to the effect, that— (a) (2) for a specified period (not exceeding 90 days), starting at the beginning of the employee’s employment, the em- ployee is to serve a trial period; and during that period the employer may dismiss the em- ployee; and if the employer does so, the employee is not entitled to bring a personal grievance or other legal proceedings in respect of the dismissal.
(b) (c) (3) (4) (5) Employee means an employee who has not been previously employed by the employer.

[Repealed] To avoid doubt, a trial provision may be included in an em- ployment agreement under— (a) (b) Section 67A: inserted, on 1 March 2009, by section 7 of the Employment Re- lations Amendment Act 2008 (2008 No 106).

section 61(1)(a), but subject to section 61(1)(b): section 63(2)(b).
Section 67A(1): amended, on 1 April 2011, by section 13(1) of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 67A(4): repealed, on 1 April 2011, by section 13(2) of the Employment Relations Amendment Act 2010 (2010 No 125).
67B Effect of trial provision under section 67A (1) This section applies if an employer terminates an employment agreement containing a trial provision under section 67A by giving the employee notice of the termination before the end of the trial period, whether the termination takes effect before, at, or after the end of the trial period.
(2) An employee whose employment agreement is terminated in accordance with subsection (1) may not bring a personal grievance or legal proceedings in respect of the dismissal.

76 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6 s 68 (3) Neither this section nor a trial provision prevents an employee from bringing a personal grievance or legal proceedings on any of the grounds specified in section 103(1)(b) to (g).
(4) An employee whose employment agreement contains a trial provision is, in all other respects (including access to medi- ation services), to be treated no differently from an employee whose employment agreement contains no trial provision or contains a trial provision that has ceased to have effect.
Subsection (4) applies subject to the following provisions: (a) (5) in observing the obligation in section 4 of dealing in good faith with the employee, the employer is not re- quired to comply with section 4(1A)(c) in making a de- cision whether to terminate an employment agreement under this section; and the employer is not required to comply with a request under section 120 that relates to terminating an employ- ment agreement under this section.
(b) Section 67B: inserted, on 1 March 2009, by section 7 of the Employment Rela- tions Amendment Act 2008 (2008 No 106).
68 (1) Unfair bargaining for individual employment agreements Bargaining for an individual employment agreement is unfair if— (a) 1 or more of paragraphs (a) to (d) of subsection (2) apply to a party to the agreement (person A); and the other party to the agreement (person B) or another person who is acting on person B’s behalf— (i) (b) (ii) knows of the circumstances described in the para- graph or paragraphs that apply to person A; or ought to know of the circumstances in the para- graph or paragraphs that apply to person A be- cause person B or the other person is aware of facts or other circumstances from which it can be reasonably inferred that the paragraph or para- graphs apply to person A.
(2) The circumstances are that person A, at the time of bargaining for or entering into the agreement,— 77 Part 6 s 69 Employment Relations Act 2000 Reprinted as at 1 July 2011 (a) (b) (c) age; or sickness; or is unable to understand adequately the provisions or implications of the agreement by reason of diminished capacity due (for example) to— (i) (ii) (iii) mental or educational disability; or (iv) (v) reasonably relies on the skill, care, or advice of person B or a person acting on person B’s behalf; or is induced to enter into the agreement by oppressive means, undue influence, or duress; or a disability relating to communication; or emotional distress; or (3) (4) 69 (1) (d) where section 63A applied, did not have the information or the opportunity to seek advice as required by that section.
In this section, individual employment agreement includes a term or condition of an individual employment agreement.

Except as provided in this section, a party to an individual em- ployment agreement must not challenge or question the agree- ment on the ground that it is unfair or unconscionable.

Section 68(2)(d): amended, on 1 December 2004, by section 29 of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).
Remedies for unfair bargaining If a party to an individual employment agreement is found to have bargained unfairly under section 68, the Authority may do 1 or more of the following things: (a) make an order that the party pay to the other party such sum, by way of compensation, as the Authority thinks fit: (b) make an order cancelling or varying the agreement: (c) make such other order as it thinks fit in the circum- stances.
(2) The Authority must not make an order under subsection (1)(b) unless the requirements in section 164 have been met, and that section applies accordingly with all necessary modifications.

78 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6AA s 69AAA Part 6AA Flexible working Part 6AA: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).
69AA Object of this Part The object of this Part is to— (a) (b) (c) (d) provide certain employees with a statutory right to re- quest a variation of their working arrangements if they have the care of any person; and require an employer to deal with a request as soon as possible but not later than 3 months after receiving it; and provide that an employer may refuse a request only if it cannot be accommodated on certain grounds; and if an employer does not deal with a request in accord- ance with the process specified in this Part, provide for reference of the matter to a Labour Inspector, then to mediation, and then to the Authority.
Section 69AA: inserted, on 1 July 2008, by section 5 of the Employment Rela- tions (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).
69AAA Interpretation In this Part, unless the context otherwise requires,— mediation means mediation provided under section 144 non-compliance with section 69AAE, except in section 69AAJ, includes an employer’s wrong determination about an employee’s eligibility to make a request under section 69AAB request means a written request made— (a) (b) under this Part; and by an employee to his or her employer to vary the em- ployee’s terms and conditions of employment relating to the employee’s working arrangements working arrangements, in relation to an employee, means 1 or more of the following: hours of work: (a) days of work: (b) place of work (for example, at home or at the em- (c) ployee’s place of work).
79 Part 6AA s 69AAB Employment Relations Act 2000 Reprinted as at 1 July 2011 Section 69AAA: inserted, on 1 July 2008, by section 5 of the Employment Rela- tions (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

Employee’s statutory right to make request Heading: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).
69AAB When employee may make request (1) An employee may make a request— (a) if the employee satisfies the criteria specified in subsec- tion (2); and subject to the limitation in section 69AAD.

(2) (b) The criteria are that— (a) (b) the employee has the care of any person; and the employee, as at the date the request is made, has been employed by his or her employer for the immedi- ately preceding 6 months.
Section 69AAB: inserted, on 1 July 2008, by section 5 of the Employment Rela- tions (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).
69AAC Requirements relating to request A request must be in writing and— (a) state— the employee’s name; and (i) the date on which the request is made; and (ii) (iii) that the request is made under this Part; and specify the variation of the working arrangements re- quested and whether the variation is permanent or for a period of time; and specify the date on which the employee proposes that the variation take effect and, if the variation is for a period of time, the date on which the variation is to end; and explain, in the employee’s view, how the variation will enable the employee to provide better care for the per- son concerned; and explain, in the employee’s view, what changes, if any, the employer may need to make to the employer’s ar- rangements if the employee’s request is approved.
(b) (c) (d) (e) 80 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6AA s 69AAE Section 69AAC: inserted, on 1 July 2008, by section 5 of the Employment Rela- tions (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

69AAD Limitation on frequency of requests (1) Subsection (2) applies if an employee has made a request under this Part and his or her employer has approved or refused the request.
The employee is not entitled to make another request under this Part to his or her employer earlier than 12 months after the date on which the previous request was made.

Section 69AAD: inserted, on 1 July 2008, by section 5 of the Employment Rela- tions (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

(2) Duties of employer Heading: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).
69AAE Employer must notify decision as soon as possible An employer must deal with a request as soon as possible but not later than 3 months after receiving it and— (a) notify the employee whether his or her request has been approved or refused; and if the request is refused, notify the employee that the request is refused because— (i) (ii) the employee is not eligible to make a request under section 69AAB; or of a ground specified in section 69AAF(2) or (3); or both; and (iii) if the request is refused because of a ground specified in section 69AAF(2) or (3),— (i) (ii) notify the employee of the ground for refusal; and provide an explanation of the reasons for that ground.
(b) (c) Section 69AAE: inserted, on 1 July 2008, by section 5 of the Employment Rela- tions (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).
81 Part 6AA s 69AAF Employment Relations Act 2000 Reprinted as at 1 July 2011 69AAF Grounds for refusal of request by employer (1) An employer may refuse a request only if the employer deter- (2) mines that— (a) (b) the employee is not eligible to make a request under section 69AAB; or the request cannot be accommodated on 1 or more of the grounds specified in subsection (2); or both.
(c) The grounds are— (a) (b) (c) (d) (e) inability to reorganise work among existing staff: inability to recruit additional staff: detrimental impact on quality: detrimental impact on performance: insufficiency of work during the periods the employee proposes to work: planned structural changes: burden of additional costs: detrimental effect on ability to meet customer demand.
(f) (g) (h) (3) However, an employer must refuse a request if— (a) (b) (c) the request is from an employee who is bound by a col- lective agreement; and the request relates to working arrangements to which the collective agreement applies; and the employee’s working arrangements would be incon- sistent with the collective agreement if the employer were to approve the request.
Section 69AAF: inserted, on 1 July 2008, by section 5 of the Employment Rela- tions (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

Resolving disputes Heading: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

69AAG Role of Labour Inspector (1) For the purposes of this Part, a Labour Inspector may provide to employees and employers such assistance as he or she con- siders appropriate in the circumstances.
This section applies subject to section 69AAH(2).

(2) 82 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6AA s 69AAI Section 69AAG: inserted, on 1 July 2008, by section 5 of the Employment Rela- tions (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

69AAH Labour Inspectors and mediation (1) (2) (3) (4) This section applies if an employee believes that his or her employer has not complied with section 69AAE.
The employee may refer the non-compliance with section 69AAE to a Labour Inspector who must, to the extent practic- able in the circumstances, assist the employee and employer to resolve the matter.

If, after completion of the process under subsection (2), the employee is dissatisfied with the result, the employee may re- fer the matter to mediation.

For the purposes of subsection (3), non-compliance with sec- tion 69AAE is an employment relationship problem.
Section 69AAH: inserted, on 1 July 2008, by section 5 of the Employment Rela- tions (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

69AAI Application to Authority (1) This section applies if— (a) an employee believes that his or her employer has not complied with section 69AAE; and (2) (b) mediation has not resolved the matter.

The employee may apply to the Authority for a determination as to whether the employer has complied with section 69AAE.
(3) An application under subsection (2) must be made within 12 (4) (5) months after the relevant date.

If the Authority determines that the employer has made a wrong determination about an employee’s eligibility to make a request under section 69AAB, the employer must comply with section 69AAE as soon as practicable.
In subsection (3), relevant date means,— (a) if the employer notifies a refusal within 3 months after receiving a request, the date on which the employer no- tifies the employee of the employer’s refusal: in any other case, the date 3 months after the employer received the employee’s request.

(b) Section 69AAI: inserted, on 1 July 2008, by section 5 of the Employment Rela- tions (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).
83 Part 6AA s 69AAJ Employment Relations Act 2000 Reprinted as at 1 July 2011 69AAJ Penalty (1) An employer who does not comply with section 69AAE is li- able to a penalty not exceeding $2,000, imposed by the Au- thority.

The penalty is payable to the employee concerned.

Section 69AAJ: inserted, on 1 July 2008, by section 5 of the Employment Rela- tions (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).
(2) 69AAK Limitation on challenging employer An employee may not challenge his or her employer’s refusal of a request, or failure to respond to a request, except— (a) if the employee believes his or her employer has not complied with section 69AAE; and to the extent provided by sections 69AAH to 69AAJ.

(b) Section 69AAK: inserted, on 1 July 2008, by section 5 of the Employment Rela- tions (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).
Review of Part Heading: inserted, on 1 July 2008, by section 5 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

69AAL Review of operation of Part after 2 years (1) The Minister must, as soon as is practicable, 2 years after the commencement of the Employment Relations (Flexible Work- ing Arrangements) Amendment Act 2007, require a report to be prepared on the operation and effects of this Part.
The Minister must ensure that the persons and organisations (including representatives of employees and employers), that the Minister thinks appropriate, are consulted during the prep- aration of the report about the matters to be considered in the report.

The report will include recommendations in relation to whether the provisions of this Part should extend to all em- ployees.

The Minister must present a copy of the report to the House of Representatives.
Section 69AAL: inserted, on 1 July 2008, by section 5 of the Employment Rela- tions (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).

(2) (3) (4) 84 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6A s 69B Part 6A Continuity of employment if employees’ work affected by restructuring Part 6A: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).
Subpart 1—Specified categories of employees Subpart 1: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).
69A Object of this subpart (b) The object of this subpart is to provide protection to specified categories of employees if, as a result of a proposed restruc- turing, their work is to be performed by another person and, to this end, to give— (a) the employees a right to elect to transfer to the other person as employees on the same terms and conditions of employment; and the employees who have transferred a right,— (i) subject to their employment agreements, to bar- gain for redundancy entitlements from the other person if made redundant by the other person for reasons relating to the transfer of the employees or to the circumstances arising from the transfer of the employees; and if redundancy entitlements cannot be agreed with the other person, to have the redundancy entitle- ments determined by the Authority.
Section 69A: substituted, on 14 September 2006, by section 6 of the Employ- ment Relations Amendment Act 2006 (2006 No 41).
(ii) 69B Interpretation In this subpart, unless the context otherwise requires,— agreement means a contract or arrangement contracting in has the meaning set out in section 69C contracting out has the meaning set out in section 69C 85 Part 6A s 69B Employment Relations Act 2000 Reprinted as at 1 July 2011 independent contractor means a person engaged to perform work under an agreement that is not an employment agreement new employer has the meaning set out in section 69D redundancy entitlements includes redundancy compensation restructuring— (a) means— (i) (ii) (iii) (iv) contracting out; or contracting in; or subsequent contracting; or selling or transferring an employer’s business (or part of it) to another person; but (b) to avoid doubt, does not include,— (i) (ii) in the case of an employer that is a company, the sale or transfer of any or all of the shares in the company; or any contract, arrangement, sale, or transfer en- tered into, made, or concluded while the em- ployer is adjudged bankrupt or in receivership or liquidation subcontractor— (a) means a person engaged by an independent contractor to perform work— (i) under an agreement that is not an employment agreement; and that the independent contractor has agreed to per- form for another person; and (ii) (b) includes another person engaged by a subcontractor (within the meaning of paragraph (a)) to perform the work or part of the work under an agreement that is not an employment agreement subsequent contracting has the meaning set out in section 69C work, in relation to work performed by an employee, includes part of the work performed by the employee.
Section 69B: substituted, on 14 September 2006, by section 6 of the Employ- ment Relations Amendment Act 2006 (2006 No 41).
86 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6A s 69C 69C Meaning of contracting in, contracting out, and (1) (2) (3) (4) subsequent contracting In this subpart, unless the context otherwise requires, con- tracting in means a situation where— (a) a person (person A) has an agreement with another per- son (person B) under which person B performs work as an independent contractor for person A; and the work or some of the work is actually performed by employees of person B or of a subcontractor; and the agreement, or that part of the agreement, under which person B performs the work expires or is termin- ated; and the work is to be performed by person A or employees (if any) of person A.
(b) (c) (d) In this subpart, unless the context otherwise requires, con- tracting out means a situation where— (a) a person (person A) enters into an agreement with an- other person (person B) under which person B is to per- form work as an independent contractor for person A; and the employees of person A are actually performing, or employed to undertake, the work or some of the work before the agreement takes effect.
(b) person B or employees (if any) of person B; or a subcontractor or employees (if any) of a subcontractor.
The definition of contracting out applies whether or not the work is to be performed by— (a) (b) In this subpart, unless the context otherwise requires,— subsequent contracting means a situation where— (a) a person (person A) has an agreement with another per- son (person B) under which person B performs work as an independent contractor for person A; and the work or some of the work is actually performed by employees of person B or of a subcontractor; and the agreement or that part of the agreement under which person B performs the work expires or is terminated; and (b) (c) 87 Part 6A s 69D Employment Relations Act 2000 Reprinted as at 1 July 2011 (d) person A enters into an agreement with another person (person C) under which person C is to perform the work as an independent contractor for person A.
(5) (6) The definition of subsequent contracting applies whether or not— (a) the work concerned has previously been the subject of a subsequent contracting: the engagement of person B as an independent contrac- tor constituted a contracting out: the work is to be performed by— (i) (ii) person C or employees (if any) of person C; or a subcontractor or employees (if any) of a sub- contractor.
(b) (c) To avoid doubt, in the definitions of contracting in, contract- ing out, and subsequent contracting, references to work in relation to person A— (a) mean work that person A is doing or would otherwise (b) do in person A’s own right; and include work that person A is doing or would otherwise do as an independent contractor or as a subcontractor.

Section 69C: substituted, on 14 September 2006, by section 6 of the Employ- ment Relations Amendment Act 2006 (2006 No 41).
69D Meaning of new employer (1) In section 69I, new employer,— (a) in relation to contracting in, means person A in the def- inition of that term: in relation to contracting out,— (i) (ii) means person B in the definition of that term; but if, instead of person B or employees (if any) of person B performing the work concerned, person B subcontracts the work (whether before or at the same time as the contracting out), means the subcontractor: in relation to subsequent contracting,— (i) (ii) means person C in the definition of that term; but if, instead of person C or employees (if any) of person C performing the work concerned, person C subcontracts the work (whether before or at the (b) (c) 88 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6A s 69E (2) same time as the subsequent contracting), means the subcontractor: (d) in relation to the sale or transfer of an employer’s busi- ness (or part of it), means the person to whom the busi- ness (or part of it) is sold or transferred.
In the rest of this subpart, new employer means the person to whom an employee— (a) may elect or has elected to transfer under section 69I; or (b) Section 69D: substituted, on 14 September 2006, by section 6 of the Employ- ment Relations Amendment Act 2006 (2006 No 41).

has transferred under that section.

69E Examples of contracting in, contracting out, and (1) subsequent contracting This section contains examples of contracting in, contracting out, and subsequent contracting.
(2) Whether, in the following examples, an employee comes within the protection provided by this subpart depends on whether section 69F applies to the employee.

This subsection sets out examples of contracting in.

(3) Example A A rest home carries on business in the age-related residential care sector.

Instead of providing food catering services through its employees, it enters into an agreement with an independent contractor to provide those services.
The agreement under which the independent contractor provides those services to the rest home expires or is terminated.

The rest home then uses its employees or engages further em- ployees to provide those services.

Employees of the independent contractor to whom section 69F applies may elect to transfer to the rest home.
Example B The circumstances in this example are the same as in example A except that the independent contractor engages a subcontractor to provide food catering services to the rest home.

As a result of the agreement between the rest home and the inde- pendent contractor expiring or being terminated, the agreement between the independent contractor and the subcontractor ex- pires or is terminated.
89 Part 6A s 69E Employment Relations Act 2000 Reprinted as at 1 July 2011 Example B—continued Employees of the subcontractor to whom section 69F applies may elect to transfer to the rest home.

Note In both example A and example B, it does not matter whether the rest home’s or the independent contractor’s employees originally provided the food catering services or whether the work was con- tracted out or subcontracted at the outset.
In example A and example B, the persons relate to the definition of contracting in as follows: • • the rest home is person A: the independent contractor is person B.

(4) This subsection sets out examples of contracting out.

Example C A school has employees who provide cleaning services.

The school then enters into an agreement with an independent contractor to do that work or some of that work.

The employees of the school to whom section 69F applies may elect to transfer to the independent contractor.
Note Example C would not be a contracting out if, at the outset, the school did not have employees providing cleaning services.

In example C, the persons relate to the definition of contracting out as follows: • • the school is person A: the independent contractor is person B.
Example D The circumstances in this example are the same as in example C, except that later on the independent contractor decides that, instead of using its employees for the contract for the school, it will engage a subcontractor to do the work or some of the work.

Employees of the independent contractor to whom section 69F applies may elect to transfer to the subcontractor.
90 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6A s 69E Note In example D, the persons relate to the definition of contracting out as follows: • • the independent contractor is person A: the subcontractor is person B.

Note In example C and example D if, at the outset, the independent contractor did not have employees providing cleaning services, but subcontracts the work straight away, then the employees to whom section 69F applies may elect to transfer to the subcon- tractor.
(5) This subsection sets out examples of subsequent contracting.

Example E An airport operator enters into an agreement with an independent contractor to provide food catering services at the airport.

Some time later, the agreement under which the independent contractor provides those services expires or is terminated.

The airport operator then enters into an agreement with a second independent contractor to provide food catering services at the airport.
Employees of the first independent contractor to whom section 69F applies may elect to transfer to the second independent con- tractor.

Note In example E, it does not matter whether the agreement between the airport operator and the first independent contractor consti- tutes a contracting out.
In example E, the persons relate to the definition of subsequent contracting as follows: • • • the airport operator is person A: the first independent contractor is person B: the second independent contractor is person C. Example F The circumstances in this example are the same as in example E, except that the first independent contractor engages a sub- contractor to do the work or some of the work.
91 Part 6A s 69F Employment Relations Act 2000 Reprinted as at 1 July 2011 Example F—continued Later on, the agreement under which the subcontractor provides the work expires or is terminated and the first independent con- tractor engages a second subcontractor to provide food catering services at the airport.

The employees of the first subcontractor to whom section 69F applies may elect to transfer to the second subcontractor.
Note In example F, the subsequent contracting occurs at the subcon- tracting level.

In example F, the persons relate to the definition of subsequent contracting as follows: • • • the independent contractor is person A: the first subcontractor is person B: the second subcontractor is person C. Section 69E: substituted, on 14 September 2006, by section 6 of the Employ- ment Relations Amendment Act 2006 (2006 No 41).
69F Application of this subpart (1) (ii) This subpart applies to an employee if— (a) (b) Schedule 1A applies to the employee; and as a result of a proposed restructuring,— (i) the employee will no longer be required by his or her employer to perform the work performed by the employee; and the work performed by the employee (or work that is substantially similar) is to be performed by or on behalf of another person.
To avoid doubt, this subpart applies even though the perform- ance of the work by or on behalf of the other person does not begin immediately after an employee ceases to perform the work for his or her employer.

Section 69F: substituted, on 14 September 2006, by section 6 of the Employ- ment Relations Amendment Act 2006 (2006 No 41).
(2) 92 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6A s 69H 69G Notice of right to make election (1) Before a restructuring takes effect, the employer of the em- ployees who will be affected by the restructuring must provide the employees affected with— (a) a reasonable opportunity to exercise the right to make an election under section 69I(1); and the date by which the right to make an election must be exercised; and information sufficient for the employees to make an in- formed decision about whether to exercise the right to make an election.
(b) (c) (2) Without limiting subsection (1)(c), the information provided under that provision must include— (a) (b) (c) (d) the name of the new employer: the nature and scope of the restructuring: the date on which the restructuring is to take effect: how to make an election, the person to whom an election is to be sent, and the form in which the election is to be sent (for example by post, fax, or email).
(3) If the restructuring is a contracting in or a subsequent contract- ing, person A in the definition that applies must give the em- ployer sufficient notice of, and information about, the restruc- turing to enable the employer to comply with subsection (1).

(4) An employer or other person who fails to comply with this section is liable to a penalty imposed by the Authority.

Section 69G: substituted, on 14 September 2006, by section 6 of the Employ- ment Relations Amendment Act 2006 (2006 No 41).
69H Employee bargaining for alternative arrangements (1) To avoid doubt, an employee may, after his or her employer has complied with section 69G and before deciding whether to elect to transfer to the new employer, bargain with his or her employer for alternative arrangements.
If the employee and employer agree on alternative arrange- ments,— (a) the alternative arrangements must be recorded in writ- ing; and if paragraph (a) is complied with, the employee may not subsequently elect to transfer to the new employer.

(b) (2) 93 Part 6A s 69I Employment Relations Act 2000 Reprinted as at 1 July 2011 Section 69H: substituted, on 14 September 2006, by section 6 of the Employ- ment Relations Amendment Act 2006 (2006 No 41).
69I Employee may elect to transfer to new employer (1) An employee to whom this subpart applies may, before the date provided to the employee under section 69G(1)(b), elect to transfer to the new employer.
If an employee elects to transfer to the new employer, then to the extent that the employee’s work is to be performed by the new employer, the employee— (a) (2) (b) (c) becomes an employee of the new employer on and from the specified date; and is employed on the same terms and conditions by the new employer as applied to the employee immediately before the specified date, including terms and condi- tions relating to whether the employee is employed full- time or part-time; and is not entitled to any redundancy entitlements under those terms and conditions of employment from his or her previous employer because of the transfer.
To avoid doubt,— (a) the election of an employee to transfer to a new em- ployer may result in the employee being employed by more than 1 employer if— (i) only part of the employee’s work is affected by the restructuring; or the work performed by the employee will be per- formed by or on behalf of more than 1 new em- ployer; and (ii) (b) a person becomes the new employer of an employee who elects to transfer to the new employer whether or not the new employer— (i) has, or intends to have, employees performing the type of work (or work that is substantially similar) to the work performed by the employee who has elected to transfer to the new employer; or (ii) was an employer before the employee transferred to the new employer: (3) 94 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6A s 69J (c) this section does not affect the employment agreement of an employee who elects not to transfer to the new employer.
Example This example relates to subsection (3)(a).

A retailer owns 3 gift shops and engages an independent contractor to clean the shops.

The independent contractor employs a cleaner to clean the gift shops.

The cleaning contract between the retailer and the independent contractor expires.
The retailer enters into a cleaning contract with a second inde- pendent contractor for the cleaning of 1 shop, and enters into a new cleaning contract with the first independent contractor for the cleaning of the other 2 shops.

As a result, the first independent contractor no longer requires the cleaner to clean 1 of the shops.
The cleaner may elect to transfer and become an employee of the second independent contractor in relation to 1 shop while remain- ing an employee of the first independent contractor in relation to the other 2 shops.

(4) In this section, specified date means the date on which the restructuring takes effect.

Section 69I: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).
69J Employment of employee who elects to transfer to new (1) (2) employer treated as continuous The employment of an employee who elects to transfer to a new employer is to be treated as continuous, including for the purpose of service-related entitlements whether legislative or otherwise.
To avoid doubt, and without limiting subsection (1),— (a) in relation to an employee’s entitlements under the Holidays Act 2003,— (i) the period of employment of an employee with the employer that ends with the transfer must be treated as a period of employment with the new employer for the purpose of determining the employee’s entitlement to annual holidays, sick leave, and bereavement leave; and 95 Part 6A s 69K Employment Relations Act 2000 Reprinted as at 1 July 2011 (ii) (iii) the employer must not pay the employee for an- nual holidays not taken before the date of trans- fer; and the new employer must recognise the employee’s entitlement to— (A) any sick leave, including any sick leave carried over under section 66 of that Act, not taken before the date of transfer; and any annual holidays not taken before the date of transfer; and any alternative holidays not taken or ex- changed for payment under section 61 of that Act before the date of transfer: (B) (C) (b) for the purposes of determining an employee’s rights and benefits to parental leave and parental leave pay- ments under the Parental Leave and Employment Protection Act 1987,— (i) the period of employment of an employee with the employer that ends with the transfer must be treated as a period of employment with the new employer; and the new employer must treat any notice given to or by the employer under the Act as if it had been given to or by the new employer.
Section 69J: substituted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).
(ii) 69K Terms and conditions of employment of transferring employee under fixed term employment This section applies to an employee if— (a) he or she is an employee of— (i) (ii) person A in the definition of contracting out; or person B or of a subcontractor in the definition of contracting in; or person B or of a subcontractor in the definition of subsequent contracting; or an employer who is selling or transferring the employer’s business (or part of it) to another per- son; and (iii) (iv) (1) 96 Reprinted as at 1 July 2011 (b) Employment Relations Act 2000 Part 6A s 69L the employee’s terms and conditions of employment in- clude a term agreed under section 66(1) that is— (i) linked to the expiry or termination of the agree- ment under which his or her employer performs the work; or included in contemplation of his or her employer entering into an agreement that constitutes a re- structuring.
(ii) (2) Despite the employee’s terms and conditions of employment containing a term referred to in subsection (1)(b), the em- ployee may elect, under section 69I, to transfer to the new em- ployer.
If the employee elects, under section 69I, to transfer to the new employer, then the following provisions apply: (a) (3) if the restructuring is a contracting out, the employee’s terms and conditions of employment must be read and applied as if the term agreed under section 66(1) were linked to the expiry or termination of the agreement be- tween person A and person B (or a subcontractor): if the restructuring is a contracting in, the employee’s terms and conditions of employment cease to include the term referred to in subsection (1)(b): if the restructuring is a subsequent contracting, the em- ployee’s terms and conditions of employment must be read and applied as if the term agreed under section 66(1) were linked to the expiry or termination of the contract or arrangement between person A and person C (or a subcontractor): if the restructuring is a sale or transfer of an employer’s business, the employee’s terms and conditions of em- ployment cease to include the term referred to in sub- section (1)(b).
(b) (c) (d) Section 69K: substituted, on 14 September 2006, by section 6 of the Employ- ment Relations Amendment Act 2006 (2006 No 41).
69L Agreements excluding entitlements for technical (1) redundancy not affected To avoid doubt, this subpart does not limit or affect any terms and conditions of employment under which the employee’s 97 Part 6A s 69M Employment Relations Act 2000 Reprinted as at 1 July 2011 (2) entitlement to redundancy entitlements is excluded where the employee may transfer to the new employer but elects not to do so.

This subpart does not limit or affect section 77HA of the State Sector Act 1988.
Section 69L: substituted, on 14 September 2006, by section 6 of the Employ- ment Relations Amendment Act 2006 (2006 No 41).

69M New employer becomes party to collective agreement that (1) binds employee electing to transfer This section applies if— (a) an employee who elects to transfer to a new employer is a member of a union and bound by a collective agree- ment; and the new employer is not a party to the collective agree- ment that the union is a party to.
(b) (2) On and from the date on which the employee becomes an em- ployee of the new employer, the new employer becomes a party to the collective agreement, but only in relation to, and for the purposes of, that employee.

Section 69M: substituted, on 14 September 2006, by section 6 of the Employ- ment Relations Amendment Act 2006 (2006 No 41).
69N Employee who transfers may bargain for redundancy entitlements with new employer This section applies to an employee if— (a) (b) (c) the employee elects, under section 69I(1), to transfer to a new employer; and the new employer proposes to make the employee re- dundant for reasons relating to the transfer of the em- ployees or to the circumstances arising from the trans- fer of the employees; and the employee’s employment agreement— (i) does not provide for redundancy entitlements for those reasons or in those circumstances; or does not expressly exclude redundancy entitle- ments for those reasons or in those circum- stances.
(ii) (1) 98 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6A s 69O (2) (3) The employee is entitled to redundancy entitlements from his or her new employer.

If an employee seeks redundancy entitlements from his or her new employer, the employee and new employer must bargain with a view to reaching agreement on appropriate redundancy entitlements.

Section 69N: substituted, on 14 September 2006, by section 6 of the Employ- ment Relations Amendment Act 2006 (2006 No 41).
69O Authority may investigate bargaining and determine (1) redundancy entitlements If an employee and his or her new employer fail to agree on redundancy entitlements under section 69N(3), the employee or new employer may apply to the Authority to investigate the bargaining relating to the matter.
(2) After concluding the investigation, the Authority must deter- mine— (a) (b) if, in the Authority’s view, it is possible for the bargain- ing to continue, how further bargaining should occur; or if, in the Authority’s view, further bargaining is not warranted, the redundancy entitlements due to an em- ployee.
(3) In determining the redundancy entitlements under subsection (2)(b), the Authority may take into account 1 or more of the following matters: (a) the redundancy entitlements (if any) provided in the em- ployee’s employment agreement for redundancy in cir- cumstances other than restructuring: the employee’s length of service with his or her previous employer and new employer: how much notice of the redundancy the employee has received: the ability of the new employer to provide redundancy entitlements: the likelihood of the employee being re-employed or obtaining employment with another employer: any other relevant matter that the Authority thinks fit.
(b) (c) (d) (e) (f) 99 Part 6A s 69OA Employment Relations Act 2000 Reprinted as at 1 July 2011 Section 69O: substituted, on 14 September 2006, by section 6 of the Employ- ment Relations Amendment Act 2006 (2006 No 41).

Subpart 2—Disclosure of costs relating to transfer of employees under proposed restructuring Subpart 2: substituted, on 13 December 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).
69OA Object of this subpart The object of this subpart is to provide for the disclosure of employee transfer costs information if— (a) disclosure is sought for the purpose of— (i) deciding whether to terminate an agreement or let it expire; or negotiating an agreement; or deciding whether to enter into an agreement; or tendering for an agreement; and (ii) (iii) (iv) a restructuring would result if the agreement were to be— (i) (ii) (iii) (iv) terminated or to expire; or concluded; or entered into; or awarded.
(b) Section 69OA: inserted, on 13 December 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).
69OB Interpretation (1) In this subpart, employee transfer costs information, in re- lation to a proposed restructuring,— (a) means information about the employment-related en- titlements of the employees who would be eligible to elect, under section 69I, to transfer to a new employer if the proposed restructuring were to proceed; and includes— (i) (b) the number of employees who would be eligible to elect to do so; and the wages or salary payable in a stated period (for example, a week, fortnight, or month) to the (ii) 100 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6A s 69OC (iii) (iv) (v) employees for performing the work that would be subject to the proposed restructuring; and the total number of hours the employees spend in a stated period (for example, a week, fortnight, or month) performing the work that would be subject to the proposed restructuring; and the cost of service-related entitlements of the em- ployees whether legislative or otherwise; and the cost of any other entitlements of the employ- ees in their capacity as employees, including any entitlements already agreed but not due until a fu- ture date or time.
(2) Any term or expression defined in subpart 1 and used but not defined in this subpart has the same meaning as in subpart 1.

Section 69OB: inserted, on 13 December 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).
69OC Disclosure of employee transfer costs information (1) A request for the disclosure of employee transfer costs infor- mation may be made if— (a) disclosure is sought for the purpose of— (i) deciding whether to terminate an agreement or let it expire; or negotiating an agreement; or deciding whether to enter into an agreement; or tendering for an agreement; and (ii) (iii) (iv) a restructuring would result if the agreement were to be— (i) (ii) (iii) (iv) terminated or to expire; or concluded; or entered into; or awarded.
(b) (2) The persons who may make the request are the persons who would, if the restructuring were to proceed and they were par- ties to the restructuring, be— (a) (b) (c) person A in the definition of contracting in: person B in the definition of contracting out: person C in the definition of subsequent contracting: 101 Part 6A s 69OD Employment Relations Act 2000 Reprinted as at 1 July 2011 (d) the person to whom an employer’s business (or part of it) is sold or transferred.
(3) The persons to whom a request may be made are the persons who would, if the restructuring were to proceed and they were parties to the restructuring, be— (a) (b) (c) (d) person B in the definition of contracting in: person A in the definition of contracting out: person A in the definition of subsequent contracting: the seller or transferor in the case of the sale or transfer of an employer’s business (or part of it).
(4) A person to whom a request is made under subsection (3) must provide to the person who made the request under subsection (2) employee transfer costs information that relates to the pro- posed restructuring.

(5) A person must provide the employee transfer costs informa- tion in sufficient time for the person who made the request to take the information into account for the purpose for which it was requested.
Employee transfer costs information provided under this sec- tion must be provided— (a) (b) in aggregate form; and to the extent practicable, in a form that protects the pri- vacy of the employees concerned.

(6) Section 69OC: inserted, on 13 December 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).
69OD Provision of employee transfer costs information by other persons Subsection (2) applies to a person who receives a request for employee transfer costs information under section 69OC(3)(a).

If the request relates (whether wholly or in part) to work that has been subcontracted and the person receiving the request does not have some or all of the information requested, the person must immediately require the subcontractor to provide the information.
Subsection (4) applies to a person who receives a request for employee transfer costs information under section 69OC(3)(c).

(1) (2) (3) 102 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6A s 69OE (4) (5) If the person does not have some or all of the information re- quested, the person must immediately require the person who performs the work to which the request relates to provide the information.
If the person who performs the work has subcontracted some or all of the work and does not have some or all of the in- formation requested, the person must immediately require the subcontractor to provide the information.
(6) A person required to provide information— (a) (b) under subsection (2) or (4) must provide the informa- tion— (i) (ii) to the person who received the request; and in time for that person to comply with section 69OC(5): under subsection (5) must provide the information— (i) (ii) to the person who required the information; and in time for the person who received the request to comply with section 69OC(5).
(7) However, if the subcontractor who is required to provide the information under subsection (2) or (5) does not have some or all of the information requested because the work has been fur- ther subcontracted, the subcontractor must immediately pro- vide to the person who required the information any details the subcontractor has about who the other subcontractor is and how to contact the other subcontractor, and (to avoid doubt) subsection (2) or (5) (as the case may require) applies accord- ingly.
Employee transfer costs information provided under this sec- tion must be provided— (a) (b) in aggregate form; and to the extent practicable, in a form that protects the pri- vacy of the employees concerned.

(8) Section 69OD: inserted, on 13 December 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).
69OE Updating disclosure of employee transfer costs information This section applies if— (1) 103 Part 6A s 69OF Employment Relations Act 2000 Reprinted as at 1 July 2011 (2) (3) (a) (b) employee transfer costs information has been provided under section 69OC or 69OD; and after the provision of the information, there is a change in the employment-related entitlements or circum- stances that the information relates to; and (c) the change makes the information provided out of date.
The person who provided the employee transfer costs informa- tion must, immediately after the change in the employment-re- lated entitlements or circumstances, provide to the person who was originally provided with the information details specify- ing— (a) (b) what the up-to-date information is.
If the person who is provided with the up-to-date employee transfer costs information is not the person who made the re- quest for the original information under section 69OC,— (a) the information that is out of date; and the person must, immediately after receiving the up-to- date information, provide it to the person who received the request for the original information; and that person must, immediately after receiving the up-to- date information, provide it to the person who made the request for the original information.
(b) (4) A person is not required to provide up-to-date information if, at the time of the change in the employment-related entitlements or circumstances, a request could not have been made for the information under section 69OC.

Section 69OE: inserted, on 13 December 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).
69OF Employer who is subject to Official Information Act 1982 Nothing in the Official Information Act 1982 (except sec- tion 6) enables an employer that is subject to that Act to withhold information that is requested under this subpart.

Section 69OF: inserted, on 13 December 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).
69OG Subpart prevails over agreement A contract, agreement, or other arrangement has no force or effect to the extent that it is inconsistent with this subpart.

104 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6A s 69OI Section 69OG: inserted, on 13 December 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

Subpart 3—Other employees Subpart 3: added, on 14 September 2006, by section 6 of the Employment Re- lations Amendment Act 2006 (2006 No 41).
69OH Object of this subpart The object of this subpart is to provide protection to employ- ees to whom subpart 1 does not apply if, as a result of a re- structuring, their work is to be performed by or on behalf of another person and, to this end, to require their employment agreements to contain employee protection provisions relat- ing to negotiations between the employer and the other person about the transfer of affected employees to the other person.
Section 69OH: inserted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).
69OI Interpretation (1) In this subpart, unless the context otherwise requires,— employee means an employee to whom Schedule 1A does not apply employee protection provision means a provision— (a) the purpose of which is to provide protection for the employment of employees affected by a restructuring; and that includes— (i) (b) a process that the employer must follow in nego- tiating with a new employer about the restructur- ing to the extent that it relates to affected employ- ees; and the matters relating to the affected employees’ employment that the employer will negotiate with the new employer, including whether the affected employees will transfer to the new employer on the same terms and conditions of employment; and the process to be followed at the time of the restructuring to determine what entitlements, (ii) (iii) 105 Part 6A s 69OJ Employment Relations Act 2000 Reprinted as at 1 July 2011 if any, are available for employees who do not transfer to the new employer new employer, in relation to a restructuring, means,— (a) in the case of a contracting out, person B in the defin- ition of that term; or in the case of a sale or transfer of a business, the person to whom the business is sold or transferred (b) restructuring— (a) means— (i) (ii) contracting out; or selling or transferring the employer’s business (or part of it) to another person; but (b) to avoid doubt, does not include— (i) (ii) (iii) contracting in; or subsequent contracting; or in the case of an employer that is a company, the sale or transfer of any or all of the shares in the company; or any contract, arrangement, sale, or transfer en- tered into, made, or concluded while the em- ployer is adjudged bankrupt or in receivership or liquidation.
(iv) (2) For the purposes of this subpart, an employee is an affected employee if,— (a) as a result of a restructuring, the employee is, or will be, no longer required by his or her employer to perform the work performed by the employee; and the type of work performed by the employee (or work that is substantially similar) is, or is to be, performed by or on behalf of another person.
(b) (3) Any term or expression defined in subpart 1 and used but not defined in this subpart has the same meaning as in subpart 1.

Section 69OI: inserted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).
69OJ Collective agreements and individual employment agreements must contain employee protection provision Every collective agreement and every individual employment agreement must contain an employee protection provision to 106 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6A s 69OL the extent that the agreement binds employees to whom this subpart applies.

Section 69OJ: inserted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).
69OK Affected employee may choose whether to transfer to new employer If an employer, in relation to a restructuring, arranges for an affected employee to transfer to the new employer, the affected employee may— (a) (b) Section 69OK: inserted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).

choose to transfer to the new employer; or choose not to transfer to the new employer.
Subpart 4—Review of Part Subpart 4: added, on 14 September 2006, by section 6 of the Employment Re- lations Amendment Act 2006 (2006 No 41).
69OL Review of operation of Part after 3 years (1) The Minister must, as soon as is practicable, 3 years after the commencement of the Employment Relations Amendment Act 2006, require a report to be prepared on— (a) whether the operation of this Part since the commence- ment of that Act has met the objects specified in sections 69A and 69OH; and if not, whether any amendments to this Part are neces- sary or desirable to meet those objects.
(b) (2) (3) The Minister must ensure that the persons and organisations (including representatives of employees and employers), that the Minister thinks appropriate, are consulted during the prep- aration of the report about the matters to be considered in the report.

The Minister must present a copy of the report to the House of Representatives.

Section 69OL: inserted, on 14 September 2006, by section 6 of the Employment Relations Amendment Act 2006 (2006 No 41).
107 Part 6B s 69P Employment Relations Act 2000 Reprinted as at 1 July 2011 Part 6B Bargaining fees Part 6B: inserted, on 1 December 2004, by section 30 of the Employment Re- lations Amendment Act (No 2) 2004 (2004 No 86).
69P Interpretation In this Part, unless the context otherwise requires,— bargaining fee means an amount payable by an employee to a union under a bargaining fee clause, whether payable as a lump sum or on a periodical basis bargaining fee clause means a provision in a collective agree- ment that, subject to this Part,— (a) applies to the employer’s employees who are not mem- bers of a union and who perform work that comes within the coverage clause of the collective agreement; and specifies the amount of the bargaining fee; and requires those employees to pay a bargaining fee; and provides that those employees’ terms and conditions of employment comprise the terms and conditions of em- ployment specified in the collective agreement.
Section 69P: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

(b) (c) (d) 69Q Bargaining fee clause does not come into force unless agreed to first by employer and union and then by secret ballot (1) A bargaining fee clause does not come into force unless the clause has— (a) (b) first been agreed to by the employer and the union in a collective agreement; and then been agreed to in a secret ballot held in accordance with this section.
The secret ballot must be— (a) held before the collective agreement comes into force; and conducted jointly by the employer and union.
(3) An employee is entitled to vote in a secret ballot if— (2) (b) (a) the work performed by the employee comes within the coverage clause in the collective agreement; and 108 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6B s 69R (b) the employee is— (i) (ii) not a member of any union; or a member only of the union that is a party to the collective agreement with the employer.
(4) For the purposes of a secret ballot, a ballot paper must contain, or have attached to it, a copy of the bargaining fee clause.

(5) A bargaining fee clause is agreed to in a secret ballot if a ma- jority of the employer’s employees who vote, vote in favour of the clause.

Section 69Q: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
69R Employer to notify employees if bargaining fee clause (1) agreed to If a bargaining fee clause is agreed to in a secret ballot, the employer must provide the employees referred to in section 69S(a) to (c) with a copy of the collective agreement that contains the bargaining fee clause and notify them in writing that— (a) their terms and conditions of employment will comprise the terms and conditions of employment specified in the collective agreement (including the obligation to pay a bargaining fee) on and from the later of the following: the expiry of the period referred to in paragraph (i) (c); or the date on which the collective agreement comes into force; and (ii) (b) (c) the bargaining fee will be deducted from their wages, specifying the amount of the bargaining fee; and if an employee does not wish to pay the bargaining fee, the employee must notify the employer in writing within the period specified in the collective agreement for that purpose that the employee does not agree to pay the bargaining fee.
(2) If an employee notifies his or her employer that the employee does not agree to pay the bargaining fee,— (a) the bargaining fee clause does not apply to the em- ployee; and 109 Part 6B s 69S Employment Relations Act 2000 Reprinted as at 1 July 2011 (b) the employee’s terms and conditions of employment re- main the same until such time as varied by agreement with the employer.

Section 69R: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
69S Which employees bargaining fee clause applies to When a bargaining fee clause has been agreed to in a secret ballot and comes into force, the clause applies to an employee if— (a) (b) (c) (d) (ii) the work performed by the employee comes within the coverage clause of the collective agreement; and the employee is not a member of any union; and the employee was— (i) entitled to vote in the secret ballot that agreed to the clause; or employed in the period beginning immediately after the secret ballot was held and ending with the close of the day before the date on which the collective agreement came into force; and the employee has not notified his or her employer in writing, within the period specified under section 69R(1)(c) that the employee does not agree to pay the bargaining fee.
Section 69S: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

69T Bargaining fee clause binding on employer and employee While a bargaining fee clause applies to an employee,— (a) the clause is binding on the employee and his or her employer; and the employer must deduct the bargaining fee from the employee’s wages and pay it to the union concerned.
(b) Section 69T: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

110 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6C s 69X 69U Amount of bargaining fee (1) A bargaining fee must not be greater than the union fee that an employee would be required to pay to the union if the em- ployee were a member of the union.
(2) A bargaining fee has no effect to the extent (if any) that the bargaining fee does not comply with subsection (1).

Section 69U: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

69V Expiry of bargaining fee clause A bargaining fee clause expires when the collective agreement that contains the clause expires.

Section 69V: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
69W Validity of bargaining fee clause A bargaining fee clause, and anything done under it in accord- ance with this Part,— (a) is not a breach of, or inconsistent with, this Act (in par- ticular sections 8, 9, 11, and 68(2)(c)); and overrides the Wages Protection Act 1983.

(b) Section 69W: inserted, on 1 December 2004, by section 30 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
Part 6C Breastfeeding facilities and breaks Part 6C: inserted, on 1 April 2009, by section 6 of the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).

69X Interpretation In this Part, unless the context otherwise requires,— breastfeeding includes expressing breast milk work period has the same meaning as in section 69ZC.
Section 69X: inserted, on 1 April 2009, by section 6 of the Employment Rela- tions (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).
111 Part 6C s 69Y Employment Relations Act 2000 Reprinted as at 1 July 2011 69Y Employer’s obligation (1) An employer must ensure that, so far as is reasonable and prac- ticable in the circumstances,— (a) appropriate facilities are provided in the workplace for an employee who is breastfeeding and who wishes to breastfeed in the workplace; and appropriate breaks are provided to an employee who is breastfeeding and wishes to breastfeed during a work period.
(b) (2) (3) For the purpose of subsection (1)(b), the breaks are paid only if the employee and employer agree that they are paid.

In subsection (1), circumstances includes— (a) (b) Section 69Y: inserted, on 1 April 2009, by section 6 of the Employment Rela- tions (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).

the employer’s operational environment; and the employer’s resources.
69Z Breastfeeding breaks additional to breaks under Part 6D Breastfeeding breaks provided under this Part are in addition (1) to breaks an employee is entitled to under Part 6D.

(3) (2) However, if an employee and employer agree, the same break may be taken for the purposes of this Part and Part 6D.

To avoid doubt, a break taken for the purposes of this Part and Part 6D is a paid break to the same extent as it would be if taken separately under Part 6D.
Section 69Z: inserted, on 1 April 2009, by section 6 of the Employment Rela- tions (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).

69ZA Code of employment practice relating to employer’s obligation As soon as practicable after the commencement of this Part, the Minister must approve, under section 100A, a code of em- ployment practice relating to an employer’s obligation under section 69Y.
Section 69ZA: inserted, on 1 April 2009, by section 6 of the Employment Rela- tions (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).

112 Reprinted as at 1 July 2011 69ZB Penalty Employment Relations Act 2000 Part 6D s 69ZD An employer who does not comply with section 69Y is liable to a penalty imposed by the Authority.

Section 69ZB: inserted, on 1 April 2009, by section 6 of the Employment Rela- tions (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).
Part 6D Rest breaks and meal breaks Part 6D: inserted, on 1 April 2009, by section 6 of the Employment Rela- tions (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).
69ZC Interpretation In this Part, unless the context otherwise requires, work period— (a) means the period— (i) (ii) beginning with the time when, in accordance with an employee’s terms and conditions of employment, an employee starts work; and ending with the time when, in accordance with an employee’s terms and conditions of employment, an employee finishes work; and (b) to avoid doubt, includes all authorised breaks (whether paid or not) provided to an employee or to which an employee is entitled during the period specified in para- graph (a).
Section 69ZC: inserted, on 1 April 2009, by section 6 of the Employment Rela- tions (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).

69ZD Entitlement to rest breaks and meal breaks (1) An employee is entitled to, and the employer must provide the employee with, rest breaks and meal breaks in accordance with this Part.

If an employee’s work period is 2 hours or more but not more than 4 hours, the employee is entitled to one 10-minute paid rest break.
If an employee’s work period is more than 4 hours but not more than 6 hours, the employee is entitled to— (3) (2) 113 Part 6D s 69ZE Employment Relations Act 2000 Reprinted as at 1 July 2011 (4) (5) one 10-minute paid rest break; and one 30-minute meal break.

(a) (b) If an employee’s work period is more than 6 hours but not more than 8 hours, the employee is entitled to— two 10-minute paid rest breaks; and (a) (b) one 30-minute meal break.
If an employee’s work period is more than 8 hours, the em- ployee is entitled to— (a) (b) the same breaks as specified in subsection (4); and the breaks as specified in subsections (2) and (3) as if the employee’s work period had started at the end of the eighth hour.

Section 69ZD: inserted, on 1 April 2009, by section 6 of the Employment Rela- tions (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).
69ZE When employer to provide rest breaks and meal breaks (1) Rest breaks and meal breaks are to be observed during an em- ployee’s work period— (a) at the times agreed between the employee and his or her employer; but in the absence of such an agreement, as specified in subsections (2) to (5).

(b) (2) Where section 69ZD(2) applies, an employer must, so far as is reasonable and practicable, provide the employee with the rest break in the middle of the work period.
(3) Where section 69ZD(3) applies, an employer must, so far as is reasonable and practicable, provide the employee with— (a) the rest break one-third of the way through the work period; and the meal break two-thirds of the way through the work period.
(b) (4) Where section 69ZD(4) applies, an employer must, so far as is reasonable and practicable, provide the employee with— the meal break in the middle of the work period; and (a) a rest break halfway between— (b) (i) (ii) the start of work and the meal break; and the meal break and the finish of work.
114 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 6D s 69ZH (5) Where section 69ZD(5) applies, an employer must, so far as is reasonable and practicable, provide the employee with the rest breaks and meal breaks in accordance with the applicable provision in subsections (2) to (4).

Section 69ZE: inserted, on 1 April 2009, by section 6 of the Employment Rela- tions (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).
69ZF Penalty An employer who does not comply with sections 69ZD and 69ZE is liable to a penalty imposed by the Authority.

Section 69ZF: inserted, on 1 April 2009, by section 6 of the Employment Rela- tions (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).
69ZG Relationship between Part and employment agreements This Part does not prevent an employer providing an employee (1) with enhanced or additional entitlements to rest breaks and meal breaks (whether specified in an employment agreement or otherwise) on a basis agreed with the employee.
(2) An employment agreement that excludes, restricts, or reduces an employee’s entitlements under section 69ZD— has no effect to the extent that it does so; but (a) is not an illegal contract under the Illegal Contracts Act (b) 1970.

Section 69ZG: inserted, on 1 April 2009, by section 6 of the Employment Rela- tions (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).
69ZH Relationship between Part and other enactments (1) Where an employee is provided with, or entitled to, rest breaks or meal breaks under another enactment,— (a) this Part prevails if the breaks provided under this Part are additional or enhanced breaks: the other enactment prevails if the breaks provided under the other enactment are additional or enhanced breaks.
(b) (2) Despite subsection (1), where an employee is a person who is required to take a rest break by, or under, another enactment, the requirement for a rest break defined by, or under, the other 115 Part 7 s 70 Employment Relations Act 2000 Reprinted as at 1 July 2011 enactment applies instead of the provisions or entitlements for rest breaks or meal breaks provided under this Part.
Section 69ZH: inserted, on 1 April 2009, by section 6 of the Employment Rela- tions (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).
Part 7 Employment relations education leave Object of this Part The object of this Part is to provide paid leave to certain em- ployees to increase their knowledge about employment rela- tions for the purpose of— (a) improving relations among unions, employees, and em- ployers; and promoting the object of this Act, especially the duty of good faith.
(b) Interpretation In this Part, unless the context otherwise requires,— eligible employee, in relation to a union or an employer, means an employee who is a member of a union employment relations education means employment rela- tions education approved under section 72 specified date means— 1 March; or (a) such other date in a year as is specified in a collective (b) agreement for the purposes of this Part year means,— (a) if a collective agreement does not provide a specified date as an alternative date to 1 March, a period of 12 months beginning on 1 March and ending on the close of the last day of February in the following year, the first such year being 1 March 2001 to 28 February 2002: if a collective agreement does provide a specified date as an alternative date to 1 March, a period of 12 months beginning on the specified date.
(b) Section 71 eligible employee: substituted, on 1 December 2004, by section 31 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

70 71 116 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 7 s 74 72 Minister to approve employment relations education (1) The Minister may, for the purposes of this Part, approve courses of employment relations education.
The Minister may approve a course of employment relations education only if satisfied that the course will further the object of this Part.

The Minister may delegate his or her power under subsection (1) to 1 or more persons.

Section 72(1): amended, on 1 December 2004, by section 32 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
(2) (3) 73 Union entitled to allocate employment relations education leave (2) (1) A union is entitled to allocate employment relations education leave to eligible employees in accordance with this Part.

The maximum number of days of employment relations edu- cation leave that a union is entitled to allocate in a year in re- spect of an employer’s eligible employees is the number of days calculated in accordance with section 74, unless the em- ployer agrees to the allocation of additional days.
The maximum number of days of employment relations edu- cation leave that a union is entitled to allocate in a year to an eligible employee is 5 days, unless the employee’s employer agrees to the allocation of additional days.

Employment relations education leave expires if it is not allo- cated by the end of the year in respect of which it is calculated under section 74, unless the employer agrees that the leave may be carried forward to the next year.
(4) (3) 74 (1) Calculation of maximum number of days of employment relations education leave The maximum number of days of employment relations edu- cation leave that a union is entitled to allocate in respect of an employer is based on the number of full-time equivalent eli- gible employees employed by the employer as at the 30th day before the specified date in a year, and is determined in accord- ance with the following table: 117 Part 7 s 75 Employment Relations Act 2000 Reprinted as at 1 July 2011 Full-time equivalent eligible employees as at the 30th day before the specified date in a year 1–5 6–50 51–280 281 or more Maximum number of days of employment relations education leave that union entitled to allocate 3 5 1 day for every 8 full-time equivalent eligible employees or part of that number 35 days plus 5 days for every 100 full-time equivalent eligible employees or part of that number that exceeds 280 (2) For the purposes of calculating the number of full-time equiva- lent eligible employees employed by an employer,— (a) an eligible employee who normally works 30 hours or more during a week is to be counted as 1: an eligible employee who normally works less than 30 hours during a week is to be counted as one-half.
(b) Section 74(1): amended, on 1 December 2004, by section 33(1) of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 74(1) table: amended, on 1 December 2004, by section 33(2) of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
75 Union to notify employer of maximum number of days of employment relations education leave calculated (1) After calculating the maximum number of days of employ- ment relations education leave, a union must give the employer concerned a notice containing— (a) the maximum number of days calculated in respect of the employer; and the details of the calculation.

(b) The union must comply with subsection (1) within 1 month after the specified date in each year.
(2) (3) Until a union complies with this section, the union must not allocate employment relations education leave.

If a union fails to comply with subsections (1) and (2), the union forfeits one-twelfth of the employment relations educa- tion leave for each complete month that the failure continues.
(4) 118 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 7 s 78 76 (1) Allocation of employment relations education leave calculated in respect of another employer This section applies to a union that is a party to a collective agreement with 2 or more employers.
(2) A union may allocate employment relations education leave calculated in respect of an employer to 1 or more eligible em- ployees of another employer only if, and to the extent that, the employers concerned agree, and subject to any terms and con- ditions agreed with the employers.
77 Allocation of employment relations education leave to eligible employee (1) A union allocates employment relations education leave to an eligible employee by giving a notice to the employee, and a copy of the notice to the employee’s employer, that informs the employee— (a) (b) (c) that the union has allocated employment relations edu- cation leave to the employee; and of the number of days of employment relations educa- tion leave allocated to the employee; and that the employee must take the employment relations education leave by the end of the year in which it is allocated; and of the terms or effect of sections 78 and 79.
(d) The allocation of employment relations education leave does not, of itself, entitle the employee to take the leave.
Eligible employee proposing to take employment relations education leave (1) An eligible employee proposing to take employment relations education leave must tell his or her employer— (a) (b) that the employee proposes to take that leave; and the dates on which the employee proposes to take that leave; and the employment relations education that the employee proposes to undertake during that leave.
(2) An eligible employee must not take employment relations edu- cation leave unless the employee complies with subsection (1) (c) 119 (2) 78 Part 7 s 79 Employment Relations Act 2000 Reprinted as at 1 July 2011 as soon as possible, but in any event no later than 14 days be- fore the first day of such leave.
(3) An employer may refuse to allow an eligible employee to take employment relations education leave if the employer is satis- fied, on reasonable grounds, that the employee taking employ- ment relations education leave on the dates notified would un- reasonably disrupt the employer’s business.

(4) (3A) To avoid doubt, a representative of an eligible employee may comply with subsection (1) on behalf of the eligible employee.
In subsection (2), day means a day of the week other than a day in the period beginning with 25 December in any year and ending with 5 January in the following year.

Section 78(3A): inserted, on 1 December 2004, by section 34 of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).
79 Eligible employee taking employment relations education leave entitled to ordinary pay (1) An employer must pay to an eligible employee the employee’s relevant daily pay as defined in section 9 of the Holidays Act 2003 or average daily pay calculated in accordance with section 9A of that Act (as the case may be) for every day or part of a day taken by the employee as employment relations education leave.
(2) However, an employer is not required to comply with subsec- tion (1) in respect of any day for which the eligible employee is paid weekly compensation under the Accident Compensation Act 2001.

Section 79(1): substituted, on 1 April 2011, by section 18 of the Holidays Amendment Act 2010 (2010 No 126).

Section 79(2): amended, on 1 April 2002, by section 337(1) of the Accident Compensation Act 2001 (2001 No 49).
Section 79(2): amended on 3 March 2010, pursuant to section 5(1)(b) of the Accident Compensation Amendment Act 2010 (2010 No 1).
Part 8 Strikes and lockouts Object of this Part The object of this Part is— 80 120 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 8 s 82 (a) (b) (c) to recognise that the requirement that a union and an employer must deal with each other in good faith does not preclude certain strikes and lockouts being lawful (as defined in this Part); and to define lawful and unlawful strikes and lockouts; and to ensure that where a strike or lockout is threatened in an essential service, there is an opportunity for a medi- ated solution to the problem.
Interpretation 81 Meaning of strike (1) In this Act, strike means an act that— (a) is the act of a number of employees who are or have been in the employment of the same employer or of different employers— (i) in discontinuing that employment, whether wholly or partially, or in reducing the normal performance of it; or in refusing or failing after any such discontinu- ance to resume or return to their employment; or in breaking their employment agreements; or in refusing or failing to accept engagement for work in which they are usually employed; or in reducing their normal output or their normal rate of work; and (ii) (iii) (iv) (v) (b) is due to a combination, agreement, common under- standing, or concerted action, whether express or im- plied, made or entered into by the employees.
In this Act, strike does not include an employees’ meeting authorised— (a) (b) (c) In this Act, to strike means to become a party to a strike.

Compare: 1991 No 22 s 61 by an employer; or by an employment agreement; or by this Act.
(2) (3) 82 Meaning of lockout (1) In this Act, lockout means an act that— 121 Part 8 s 83 Employment Relations Act 2000 Reprinted as at 1 July 2011 (a) is the act of an employer— (i) in closing the employer’s place of business, or suspending or discontinuing the employer’s busi- ness or any branch of that business; or in discontinuing the employment of any employ- ees; or in breaking some or all of the employer’s em- ployment agreements; or in refusing or failing to engage employees for any work for which the employer usually employs employees; and (ii) (iii) (iv) (b) is done with a view to compelling employees, or to aid another employer in compelling employees, to— (i) (ii) accept terms of employment; or comply with demands made by the employer.
(2) In this Act, to lock out means to become a party to a lockout.
Compare: 1991 No 22 s 62 Lawfulness of strikes and lockouts Lawful strikes and lockouts related to collective bargaining Participation in a strike or lockout is lawful if the strike or lockout— (a) (b) is not unlawful under section 86; and relates to bargaining— (i) for a collective agreement that will bind each of the employees concerned; or (ii) with regard to an aspect of a collective agreement in respect of which the right to strike or lock out, as the case may be, is available under a declar- ation made by the court under section 192(2)(c).
Compare: 1991 No 22 s 64(1) Lawful strikes and lockouts on grounds of safety or health Participation in a strike or lockout is lawful if the employees who strike have, or the employer who locks out has, reasonable grounds for believing that the strike or lockout is justified on the grounds of safety or health.
Compare: 1991 No 22 s 71(1) 83 84 122 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 8 s 86 85 (1) (b) Effect of lawful strike or lockout Lawful participation in a strike or lockout does not give rise— to proceedings under section 99 that are founded on tort; (a) or to proceedings under section 100 for the grant of an injunction; or to any action or proceedings— (i) (ii) (iii) for a breach of an employment agreement; or for a penalty under this Act; or for the grant of a compliance order.
(c) (2) Where it is proved in proceedings that participation in a strike or lockout of a kind described in section 86 has occurred, a party to those proceedings who alleges that participation in the strike or lockout was lawful by virtue of section 84 has the burden of proving that allegation.
Compare: 1991 No 22 ss 64(2), 71(2) 86 (1) Unlawful strikes or lockouts Participation in a strike or lockout is unlawful if the strike or lockout— (a) occurs while a collective agreement binding the em- ployees participating in the strike or affected by the lockout is in force, unless subsection (2) applies; or occurs during bargaining for a proposed collective agreement that will bind the employees participating in the strike or affected by the lockout, unless— (i) (b) (ii) (iii) at least 40 days have passed since the bargaining was initiated; and if on the date bargaining was initiated the em- ployees were bound by the same collective agree- ment, that collective agreement has expired; and if on that date the employees were bound by dif- ferent collective agreements, at least 1 of those collective agreements has expired; or (c) (d) (da) (e) relates to a personal grievance; or relates to a dispute; or relates to a bargaining fee clause or proposed bargaining fee clause under Part 6B; or relates to any matter dealt with in Part 3; or 123 Part 8 s 87 Employment Relations Act 2000 Reprinted as at 1 July 2011 (f) is in an essential service and the requirements as to no- tice that are contained in section 90 or section 91, as the case may be, have not been complied with; or takes place in contravention of an order of the court.
(2) (g) Subsection (1)(a) does not apply— (a) to an aspect of a collective agreement in respect of which the right to strike or lock out, as the case may be, is available under a declaration made by the court under section 192(2)(c); or to a collective agreement that is still in force after the first of the collective agreements referred to in subsec- tion (1)(b)(iii) has expired, for so long as that bargaining continues.
(b) (3) For the purposes of this section, in determining whether a col- lective agreement is in force or has expired section 53 is not to be taken into account.

Compare: 1991 No 22 s 63(a)–(d), (f), (g) Section 86(1)(da): inserted, on 1 December 2004, by section 35 of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).
Suspension of employees during strikes Suspension of striking employees 87 (1) Where there is a strike, the employer may suspend the employ- ment of an employee who is a party to the strike.

(2) Unless sooner revoked by the employer, a suspension under (3) subsection (1) continues until the strike is ended.
The suspension under this section of all or any of the employ- ees who are on strike does not end the strike and those employ- ees do not, by reason only of their suspension under subsection (1), cease to be parties to the strike.

(4) An employee who is suspended under subsection (1) is not entitled to any remuneration by way of salary, wages, allow- ances, or other emoluments in respect of the period of the sus- pension.
(5) On the resumption of the employee’s employment, the em- ployee’s service must be treated as continuous, despite the 124 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 8 s 89 period of suspension, for the purpose of rights and benefits that are conditional on continuous service.
Compare: 1991 No 22 s 65 88 Suspension of non-striking employees where work not available during strike (1) Where there is a strike, and as a result of the strike an employer is unable to provide for a non-striking employee work that is normally performed by that employee, the employer may suspend the employee’s employment until the strike is ended.
(2) A non-striking employee who is suspended under subsection (1) is not entitled to any remuneration by way of salary, wages, allowances, or other emoluments in respect of the period of the suspension.

(3) On the resumption of the employee’s employment, that em- ployee’s service must be treated as continuous, despite the period of suspension, for the purpose of rights and benefits that are conditional on continuous service.
(4) Where a non-striking employee or group of non-striking em- ployees is suspended under subsection (1), that employee or group of employees may— (a) challenge the suspension by applying for the grant of a compliance order under section 137; and seek other remedies under this Act in respect of the suspension, including (without limitation) arrears of wages.

(b) (5) 89 In this section, non-striking employee means an employee who is in the employer’s employment and who is not on strike.
Compare: 1991 No 22 s 66(1), (2) Basis of suspension Where an employer suspends an employee under section 87 or section 88, the employer must indicate to the employee, at the time of the employee’s suspension, the section under which the suspension is being effected.
Compare: 1991 No 22 s 67 125 Part 8 s 90 Employment Relations Act 2000 Reprinted as at 1 July 2011 Essential services Strikes in essential services 90 (1) No employee employed in an essential service may strike— (a) (b) unless participation in the strike is lawful under section 83 or section 84; and if subsection (2) applies,— (i) without having given to his or her employer and to the chief executive, within 28 days before the date of the commencement of the strike, notice in writing of his or her intention to strike; and before the date specified in the notice as the date on which the strike will begin.
The requirements specified in subsection (1)(b) apply if— (a) the proposed strike will affect the public interest, in- cluding (without limitation) public safety or health; and the proposed strike relates to bargaining of the type spe- cified in section 83(b).
(ii) (b) The notice required by subsection (1)(b)(i) must specify— the period of notice, being a period that is— (a) (i) no less than 14 days in the case of an essential service described in Part A of Schedule 1; and no less than 3 days in the case of an essential service described in Part B of Schedule 1; and (ii) (b) (c) the nature of the proposed strike, including whether or not the proposed action will be continuous; and the place or places where the proposed strike will occur; and the date on which the strike will begin.
(d) The notice— (a) must be signed by a representative of the employee’s (b) union on the employee’s behalf: need not specify the names of the employees on whose behalf it is given if it is expressed to be given on behalf of all employees who— (i) are members of a union that is a party to the bar- gaining; and are covered by the bargaining; and (ii) (2) (3) (4) 126 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 8 s 91 (iii) are employed in the relevant part of the essential service or at any particular place or places where the essential service is carried on.
Compare: 1991 No 22 s 69 Lockouts in essential services 91 (1) No employer engaged in an essential service may lock out any employees who are employed in the essential service— (a) (b) unless participation in the lockout is lawful under sec- tion 83 or section 84; and if subsection (2) applies,— (i) without having given to the employees’ union or unions and to the chief executive, within 28 days before the date of commencement of the lockout, notice in writing of the employer’s intention to lock out; and before the date specified in the notice as the date on which the lockout will begin.
The requirements specified in subsection (1)(b) apply if— (a) the proposed lockout will affect the public interest, in- cluding (without limitation) public safety or health; and the proposed lockout relates to bargaining of the type specified in section 83(b).
(ii) (b) The notice required by subsection (1)(b)(i) must specify— the period of notice, being a period that is— (a) (i) no less than 14 days in the case of an essential service described in Part A of Schedule 1; and no less than 3 days in the case of an essential service described in Part B of Schedule 1; and (ii) (b) (c) the nature of the proposed lockout, including whether or not it will be continuous; and the place or places where the proposed lockout will occur; and the date on which the lockout will begin; and the names of the employees who will be locked out.
(d) (e) The notice must be signed either by the employer or on the employer’s behalf.
Compare: 1991 No 22 s 70 127 (2) (3) (4) Part 8 s 92 Employment Relations Act 2000 Reprinted as at 1 July 2011 92 Chief executive to ensure mediation services provided Where the chief executive receives a notice of intention to strike or lock out under section 90(1)(b)(i) or section 91(1)(b)(i), the chief executive must ensure that mediation services are provided as soon as possible to the parties to the proposed strike or lockout for the purpose of assisting the parties to avoid the need for the strike or lockout.
Procedure to provide public with notice before strike or lockout in certain passenger transport services 93 Procedure to provide public with notice before strike in certain passenger transport services (1) No employee employed in a passenger road service or a pas- senger rail service may strike— (a) unless participation in the strike is lawful under section 83 or section 84; and (b) without the employee’s union giving his or her em- ployer notice in writing of the employee’s intention to strike.
(b) (c) The notice required by subsection (1) must specify— (a) the period of notice, being a period of not less than 24 hours; and the nature of the proposed strike, including whether or not the proposed action will be continuous; and the particular passenger road service or passenger rail service that will be affected by the strike; and the date on which the strike will begin.
(d) The notice— (a) must be signed by a representative of the employee’s (b) union; and need not specify the names of the employees on whose behalf it is given if it is expressed to be given on behalf of all employees who— (i) are members of a union that is a party to the bar- gaining; and are covered by the bargaining; and are employed in the relevant part of the passenger road service or passenger rail service.
(ii) (iii) (2) (3) 128 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 8 s 94 (5) (4) An employer who is given notice of a strike under subsection (1) must take all practicable steps to ensure that the public who are likely to be affected are notified of the strike as soon as possible after the employer receives the notice.
For the purposes of this section and section 94, passenger road service means the carriage of passengers on any road, whether or not for hire or reward, by means of a large passen- ger service vehicle within the meaning of that term in section 2(1) of the Land Transport Act 1998 (not including any service specified as an exempt service in the regulations or the rules made under that Act).

Section 93(5): substituted, on 1 October 2007, by section 95(6) of the Land Transport Amendment Act 2005 (2005 No 77).
94 Procedure to provide public with notice before lockout in certain passenger transport services (1) No employer engaged in providing a passenger road service or passenger rail service may lock out employees who are em- ployed in the service— (a) unless participation in the lockout is lawful under sec- tion 83 or section 84; and (b) without having given to the employees’ union or unions notice in writing of the employer’s intention to lock out.
(2) (3) (b) (c) The notice required by subsection (1) must specify— (a) the period of notice, being a period of not less than 24 hours; and the nature of the proposed lockout, including whether or not it will be continuous; and the particular passenger road service or passenger rail service that will be affected by the lockout; and the date on which the lockout will begin; and the names of the employees who will be locked out.
(d) (e) The notice must be signed either by the employer or on the employer’s behalf.

(4) An employer engaged in providing a passenger road service or passenger rail service and who intends to lock out any employ- ees who are employed in the service must take all practicable steps to ensure that the public who are likely to be affected are notified of the lockout as soon as possible.
129 Part 8 s 95 Employment Relations Act 2000 Reprinted as at 1 July 2011 Penalty for breach of section 93 or section 94 95 (1) A union that fails to comply with section 93 is liable to a penalty imposed by the court under this Act.

(2) An employer who fails to comply with section 93 or section 94 is liable to a penalty imposed by the court under this Act.
Except as provided in this section, a union or employer is under no liability (whether under this Act or the general law) for a failure to comply with section 93 or section 94.
(3) Employer’s liability for wages during lockout Employer not liable for wages during lockout 96 (1) Where any employees are locked out by their employer, those employees are not entitled to any remuneration by way of salary, wages, allowances, or other emoluments in respect of the period of the lockout, unless the employer’s participation in the lockout is unlawful.
(2) On the resumption of work by the employees, their service must be treated as continuous, despite the period of the lock- out, for the purpose of rights and benefits that are conditional on continuous service.

Compare: 1991 No 22 s 72 Performance of duties of striking or locked out employees Performance of duties of striking or locked out employees 97 (1) This section applies if there is a lockout or lawful strike.
(2) An employer may employ or engage another person to per- form the work of a striking or locked out employee only in accordance with subsection (3) or subsection (4).

(3) An employer may employ another person to perform the work of a striking or locked out employee if the person— (a) is already employed by the employer at the time the strike or lockout commences; and is not employed principally for the purpose of perform- ing the work of a striking or locked out employee; and agrees to perform the work.
(b) (c) 130 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 8 s 99 (4) An employer may employ or engage another person to perform the work of a striking or locked out employee if— (a) there are reasonable grounds for believing it is neces- sary for the work to be performed for reasons of safety or health; and the person is employed or engaged to perform the work only to the extent necessary for reasons of safety or health.
(b) (5) A person who performs the work of a striking or locked out employee in accordance with subsection (3) or subsection (4) must not perform that work for any longer than the duration of the strike or lockout.

(6) An employer who fails to comply with this section is liable to a penalty imposed by the Authority under this Act in respect of each person who performs the work concerned.
Record of strikes and lockouts 98 99 (1) Record of strikes and lockouts If a strike or lockout occurs, the employer of the employees participating in the strike or affected by the lockout must— (a) keep a record, in the prescribed form, of the strike or lockout; and give to the chief executive, within 1 month after the end of the strike or lockout, a copy of that record.
(b) Compare: 1991 No 22 s 142 Jurisdiction of Employment Court Jurisdiction of court in relation to torts The court has full and exclusive jurisdiction to hear and deter- mine proceedings founded on tort— (a) issued against a party to a strike or lockout that is threat- ened, is occurring, or has occurred, and that have re- sulted from or are related to that strike or lockout: issued against any person in respect of picketing related to a strike or lockout.
(b) (2) No other court has jurisdiction to hear and determine any ac- tion or proceedings founded on tort— (a) resulting from or related to a strike or lockout: 131 Part 8 s 100 Employment Relations Act 2000 Reprinted as at 1 July 2011 (b) in respect of any picketing related to a strike or lockout.
(3) Where any action or proceedings founded on tort are com- menced in the court, and the court is satisfied that the pro- ceedings resulted from or related to participation in a strike or lockout that is lawful under section 83 or section 84,— (a) (b) the court must dismiss those proceedings; and no proceedings founded on tort and resulting from or related to that strike or lockout may be commenced in the District Court or the High Court.
Compare: 1991 No 22 s 73 100 (1) Jurisdiction of court in relation to injunctions The court has full and exclusive jurisdiction to hear and deter- mine any proceedings issued for the grant of an injunction— to stop a strike or lockout that is occurring or to prevent (a) a threatened strike or lockout; or to stop any picketing related to a strike or lockout or to prevent any threatened picketing related to a strike or lockout.
(b) (2) No other court has jurisdiction to hear and determine any ac- tion or proceedings seeking the grant of an injunction— (a) to stop a strike or lockout that is occurring or to prevent a threatened strike or lockout; or to stop any picketing related to a strike or lockout or to prevent any threatened picketing related to a strike or lockout.
(b) (3) Where any action or proceedings seeking the grant of an in- junction to stop a strike or lockout or to prevent a threatened strike or lockout are commenced in the court, and the court is satisfied that participation in the strike or lockout is lawful under section 83 or section 84,— (a) the court must dismiss that action or those proceedings; and no proceedings seeking the grant of an injunction to stop that strike or lockout or to prevent that threatened strike or lockout may be commenced in the District Court or the High Court.
Compare: 1991 No 22 s 74 (b) 132 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 8A s 100B Part 8A Codes of employment practice and code of good faith for public health sector Part 8A: inserted, on 1 December 2004, by section 36 of the Employment Re- lations Amendment Act (No 2) 2004 (2004 No 86).

Codes of employment practice Heading: inserted, on 1 December 2004, by section 36 of the Employment Re- lations Amendment Act (No 2) 2004 (2004 No 86).
100A Codes of employment practice (1) (2) (3) (4) The Minister may, by notice in the Gazette, approve 1 or more codes of employment practice.

The notice in the Gazette may, instead of setting out the code of employment practice being approved,— (a) (b) provide sufficient information to identify the code; and specify the date on which the code comes into force; and state where copies of the code may be obtained.
(c) Before the Minister approves a code of employment practice, the Minister must consult, or be satisfied that there has been consultation, with such persons and organisations as the Min- ister thinks appropriate, including relevant employer and em- ployee interests.
The purpose of a code of employment practice is to provide guidance on the application of this Act— (a) (b) (c) generally; or in relation to particular types of situations; or in relation to particular parts or areas of the employment environment.

Section 100A: inserted, on 1 December 2004, by section 36 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
100B Amendment and revocation of code of practice A code of practice may be amended or revoked in the same manner as the code is approved.

Section 100B: inserted, on 1 December 2004, by section 36 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
133 Part 8A s 100C Employment Relations Act 2000 Reprinted as at 1 July 2011 100C Authority or court may have regard to code of practice The Authority or the court may, in determining any matter within its jurisdiction, have regard to a code of employment practice that— (a) (b) was in force at the relevant time; and in the form in which it was then in force, related to the circumstances before the Authority or the court.
Section 100C: inserted, on 1 December 2004, by section 36 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

Code of good faith for public health sector Heading: inserted, on 1 December 2004, by section 36 of the Employment Re- lations Amendment Act (No 2) 2004 (2004 No 86).

100D Code of good faith for public health sector (1) (2) (3) (4) (5) Schedule 1B contains a code of good faith for the public health sector.
The code— (a) applies subject to the other provisions of this Act and any other enactment; and in particular, does not limit the application of the duty of good faith in section 4 in relation to the public health sector.

(b) Compliance with the code does not, of itself, necessarily mean that the duty of good faith in section 4 has been complied with.

It is a breach of the duty of good faith in section 4 for a person to whom the code applies to fail to comply with the code.
This section does not prevent a code of good faith approved under section 35 or a code of employment practice approved under section 100A applying in relation to the public health sector.

(6) However, in the case of any inconsistency, the code set out in Schedule 1B prevails over a code approved under section 35 or section 100A.

Section 100D: inserted, on 1 December 2004, by section 36 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
134 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 8A s 100F 100E Amendments to or replacement of code of good faith for (1) (2) public health sector The Governor-General may, by Order in Council made on the recommendation of the Minister, amend or replace the code of good faith for the public health sector set out in Schedule 1B.
The Minister must not make a recommendation under subsec- tion (1) unless— (a) requested to do so by— (i) not less than three-quarters of district health boards; and unions who represent not less than three-quarters of union members employed by district health boards; and (ii) (b) the Minister has consulted the Minister of Health and such other persons and organisations as he or she con- siders appropriate.
Section 100E: inserted, on 1 December 2004, by section 36 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

100F Code of good faith for employment relationships in (1) (2) (3) (4) (5) relation to provision of services by New Zealand Police Schedule 1C contains a code of good faith for employment relationships in relation to the provision of services by the New Zealand Police.
The code— (a) applies subject to the other provisions of this Act and any other enactment; and in particular, does not limit the application of the duty of good faith in section 4 in relation to the New Zealand Police.

(b) Compliance with the code does not, of itself, necessarily mean that the duty of good faith in section 4 has been complied with.

It is a breach of the duty of good faith in section 4 for a person to whom the code applies to fail to comply with the code.
This section does not prevent a code of good faith approved under section 35 or a code of employment practice approved under section 100A applying to employment relationships in relation to the provision of services by the New Zealand Po- lice.

135 Part 8A s 100G Employment Relations Act 2000 Reprinted as at 1 July 2011 (6) However, in the case of any inconsistency, the code set out in Schedule 1C prevails over a code approved under section 35 or 100A.
Section 100F: inserted, on 1 October 2008, by section 120 of the Policing Act 2008 (2008 No 72).

100G Amendments to or replacement of code of good faith (1) (2) for employment relationships in relation to provision of services by New Zealand Police The Governor-General may, by Order in Council made on the recommendation of the Minister, amend or replace the code of good faith for employment relationships in relation to the provision of services by the New Zealand Police set out in Schedule 1C.
The Minister must not make a recommendation under subsec- tion (1) unless— (a) requested to do so by the Commissioner of Police and service organisations representing not less than three- quarters of service organisation members employed by the Police; and the Minister has consulted the Minister of Police and any other persons and organisations that he or she con- siders appropriate.

(b) (3) In this section, service organisation has the same meaning as in section 55 of the Policing Act 2008.
Section 100G: inserted, on 1 October 2008, by section 120 of the Policing Act 2008 (2008 No 72).
Part 9 Personal grievances, disputes, and enforcement Object 101 Object of this Part The object of this Part is— (a) to recognise that, in resolving employment relationship problems, access to both information and mediation ser- vices is more important than adherence to rigid formal procedures; and 136 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 9 s 103 (b) (ab) to recognise that employment relationship problems are more likely to be resolved quickly and successfully if the problems are first raised and discussed directly be- tween the parties to the relationship; and to continue to give special attention to personal grievances, and to facilitate the raising of personal grievances with employers; and [Repealed] to ensure that the role of the Authority and the court in resolving employment relationship problems is to de- termine the rights and obligations of the parties rather than to fix terms and conditions of employment.
Section 101(ab): inserted, on 1 December 2004, by section 37 of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).

(c) (d) Section 101(c): repealed, on 1 April 2011, by section 14 of the Employment Relations Amendment Act 2010 (2010 No 125).

Personal grievances 102 Employee may pursue personal grievance under this Act An employee who believes that he or she has a personal grievance may pursue that grievance under this Act.
103 Personal grievance (1) For the purposes of this Act, personal grievance means any grievance that an employee may have against the employee’s employer or former employer because of a claim— (a) (b) that the employee has been unjustifiably dismissed; or that the employee’s employment, or 1 or more con- ditions of the employee’s employment (including any condition that survives termination of the employment), is or are or was (during employment that has since been terminated) affected to the employee’s disadvantage by some unjustifiable action by the employer; or that the employee has been discriminated against in the employee’s employment; or that the employee has been sexually harassed in the em- ployee’s employment; or that the employee has been racially harassed in the em- ployee’s employment; or (c) (d) (e) 137 Part 9 s 103A Employment Relations Act 2000 Reprinted as at 1 July 2011 (2) (3) (f) (g) that the employee has been subject to duress in the employee’s employment in relation to membership or non-membership of a union or employees organisation; or that the employee’s employer has failed to comply with a requirement of Part 6A; or [Repealed] (h) For the purposes of this Part, a representative, in relation to an employer and in relation to an alleged personal grievance, means a person— (a) (b) who either— who is employed by that employer; and (i) (ii) has authority over the employee alleging the grievance; or is in a position of authority over other employees in the workplace of the employee alleging the grievance.
In subsection (1)(b), unjustifiable action by the employer does not include an action deriving solely from the interpretation, application, or operation, or disputed interpretation, applica- tion, or operation, of any provision of any employment agree- ment.

Compare: 1991 No 22 s 27 Section 103(1)(f): amended, on 14 September 2006, by section 7(1) of the Em- ployment Relations Amendment Act 2006 (2006 No 41).
Section 103(1)(g): added, on 14 September 2006, by section 7(2) of the Em- ployment Relations Amendment Act 2006 (2006 No 41).

Section 103(1)(g): amended, on 10 September 2008, by section 7(1) of the Em- ployment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).

Section 103(1)(h): repealed, on 16 December 2008, by section 8 of the Em- ployment Relations Amendment Act 2008 (2008 No 106).
103A Test of justification (1) For the purposes of section 103(1)(a) and (b), the question of whether a dismissal or an action was justifiable must be deter- mined, on an objective basis, by applying the test in subsection (2).
The test is whether the employer’s actions, and how the em- ployer acted, were what a fair and reasonable employer could (2) 138 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 9 s 104 (3) (4) (5) have done in all the circumstances at the time the dismissal or action occurred.
In applying the test in subsection (2), the Authority or the court must consider— (a) whether, having regard to the resources available to the employer, the employer sufficiently investigated the al- legations against the employee before dismissing or tak- ing action against the employee; and (c) (b) whether the employer raised the concerns that the em- ployer had with the employee before dismissing or tak- ing action against the employee; and whether the employer gave the employee a reasonable opportunity to respond to the employer’s concerns be- fore dismissing or taking action against the employee; and (d) whether the employer genuinely considered the em- ployee’s explanation (if any) in relation to the allega- tions against the employee before dismissing or taking action against the employee.
In addition to the factors described in subsection (3), the Au- thority or the court may consider any other factors it thinks appropriate.

The Authority or the court must not determine a dismissal or an action to be unjustifiable under this section solely because of defects in the process followed by the employer if the defects were— (a) minor; and (b) Section 103A: substituted, on 1 April 2011, by section 15 of the Employment Relations Amendment Act 2010 (2010 No 125).
did not result in the employee being treated unfairly.
104 Discrimination (1) For the purposes of section 103(1)(c), an employee is discrim- inated against in that employee’s employment if the em- ployee’s employer or a representative of that employer, by rea- son directly or indirectly of any of the prohibited grounds of discrimination specified in section 105, or by reason directly or indirectly of that employee’s refusal to do work under sec- tion 28A of the Health and Safety in Employment Act 1992, 139 Part 9 s 105 Employment Relations Act 2000 Reprinted as at 1 July 2011 or involvement in the activities of a union in terms of section 107,— (a) refuses or omits to offer or afford to that employee the same terms of employment, conditions of work, fringe benefits, or opportunities for training, promotion, and transfer as are made available for other employees of the same or substantially similar qualifications, experience, or skills employed in the same or substantially similar circumstances; or dismisses that employee or subjects that employee to any detriment, in circumstances in which other employ- ees employed by that employer on work of that descrip- tion are not or would not be dismissed or subjected to such detriment; or retires that employee, or requires or causes that em- ployee to retire or resign.
(b) (c) (2) (3) For the purposes of this section, detriment includes anything that has a detrimental effect on the employee’s employment, job performance, or job satisfaction.

This section is subject to the exceptions set out in section 106.

Compare: 1991 No 22 s 28(1) Section 104(1): amended, on 5 May 2003, by section 33(1) of the Health and Safety in Employment Amendment Act 2002 (2002 No 86).
105 Prohibited grounds of discrimination for purposes of sex: section 104 The prohibited grounds of discrimination referred to in sec- tion 104 are the prohibited grounds of discrimination set out in section 21(1) of the Human Rights Act 1993, namely— (a) (b) marital status: (c) (d) (e) (f) (g) (h) (i) (j) religious belief: ethical belief: colour: race: ethnic or national origins: disability: age: political opinion: (1) 140 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 9 s 106 employment status: family status: sexual orientation.
(k) (l) (m) The items listed in subsection (1) have the meanings (if any) given to them by section 21(1) of the Human Rights Act 1993.
(2) 106 Exceptions in relation to discrimination (1) (f) (c) (e) (d) (b) Section 104 must be read subject to the following provisions of the Human Rights Act 1993 dealing with exceptions in relation to employment matters: (a) section 24 (which provides for an exception in relation to crews of ships and aircraft): section 25 (which provides for an exception in relation to work involving national security): section 26 (which provides for an exception in relation to work performed outside New Zealand): section 27 (which provides for exceptions in relation to authenticity and privacy): section 28 (which provides for exceptions for purposes of religion): section 29 (which provides for exceptions in relation to disability): section 30 (which provides for exceptions in relation to age): section 31 (which provides for an exception in relation to employment of a political nature): section 32 (which provides for an exception in relation to family status): [Repealed] section 34 (which relates to regular forces and Police): section 35 (which provides a general qualification on exceptions): (m) section 70 (which relates to superannuation schemes).
For the purposes of subsection (1), sections 24 to 35 of the Human Rights Act 1993 must be read as if they referred to section 104 of this Act, rather than to section 22 of that Act.
In particular,— (j) (k) (l) (h) (g) (i) (2) 141 Part 9 s 107 Employment Relations Act 2000 Reprinted as at 1 July 2011 (a) (b) references in sections 24 to 29, 31, and 32 of that Act to section 22 of that Act must be read as if they were references to section 104(1); and references in section 30 or section 34 of that Act— (i) to section 22(1)(a) or 22(1)(b) of that Act must be read as if they were references to section 104(1)(a); and to section 22(1)(c) of that Act must be read as if they were references to section 104(1)(b); and to section 22(1)(d) of that Act must be read as if they were references to section 104(1)(c).
(ii) (iii) (3) Nothing in section 104 includes as discrimination— (a) (b) anything done or omitted for any of the reasons set out in paragraph (a) or paragraph (b) of section 73(1) of the Human Rights Act 1993 (which relate to measures to ensure equality); or preferential treatment granted by reason of any of the reasons set out in paragraph (a) or paragraph (b) of sec- tion 74 of the Human Rights Act 1993 (which relate to pregnancy, childbirth, or family responsibilities); or retiring an employee or requiring or causing an em- ployee to retire at a particular age that has effect by virtue of section 149(2) of the Human Rights Act 1993 (which is a savings provision in relation to retirement ages specified in certain employment contracts).
Section 106(1)(j): repealed, on 5 May 2007, by section 6(2) of the Human Rights (Women in Armed Forces) Amendment Act 2007 (2007 No 16).

(c) Section 106(1)(m): added, on 1 December 2004, by section 39 of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 106(2)(a): amended, on 5 May 2007, by section 6(3) of the Human Rights (Women in Armed Forces) Amendment Act 2007 (2007 No 16).
107 Definition of involvement in activities of union for purposes of section 104 For the purposes of section 104, involvement in the activities of a union means that, within 12 months before the action complained of, the employee— (a) was an officer of a union or part of a union, or was a member of the committee of management of a union or (1) 142 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 9 s 108 part of a union, or was otherwise an official or represen- tative of a union or part of a union; or had acted as a negotiator or representative of employees in collective bargaining; or (b) (d) (ba) had participated in a strike lawfully; or (c) was involved in the formation or the proposed forma- tion of a union; or had made or caused to be made a claim for some benefit of an employment agreement either for that employee or any other employee, or had supported any such claim, whether by giving evidence or otherwise; or had submitted another personal grievance to that em- ployee’s employer; or had been allocated, had applied to take, or had taken any employment relations education leave under this Act; or (g) was a delegate of other employees in dealing with the employer on matters relating to the employment of those employees.
(e) (f) (2) An employee who is representing employees under the Health and Safety in Employment Act 1992, whether as a health and safety representative (as the term is defined in that Act) or otherwise, is to be treated as if he or she were a delegate of other employees for the purposes of subsection (1)(g).

Compare: 1991 No 22 s 28(2) Section 107(1)(ba): inserted, on 1 December 2004, by section 40 of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).
Section 107(2): added, on 5 May 2003, by section 33(2) of the Health and Safety in Employment Amendment Act 2002 (2002 No 86).
108 Sexual harassment (1) For the purposes of sections 103(1)(d) and 123(d), an em- ployee is sexually harassed in that employee’s employment if that employee’s employer or a representative of that em- ployer— (a) directly or indirectly makes a request of that employee for sexual intercourse, sexual contact, or other form of sexual activity that contains— (i) an implied or overt promise of preferential treat- ment in that employee’s employment; or 143 Part 9 s 109 Employment Relations Act 2000 Reprinted as at 1 July 2011 (ii) (iii) an implied or overt threat of detrimental treat- ment in that employee’s employment; or an implied or overt threat about the present or future employment status of that employee; or (b) by— (i) the use of language (whether written or spoken) of a sexual nature; or the use of visual material of a sexual nature; or (ii) (iii) physical behaviour of a sexual nature,— directly or indirectly subjects the employee to be- haviour that is unwelcome or offensive to that employee (whether or not that is conveyed to the employer or representative) and that, either by its nature or through repetition, has a detrimental effect on that employee’s employment, job performance, or job satisfaction.
For the purposes of sections 103(1)(d) and 123(d), an em- ployee is also sexually harassed in that employee’s employ- ment (whether by a co-employee or by a client or customer of the employer), if the circumstances described in section 117 have occurred.
Compare: 1991 No 22 s 29 (2) 109 Racial harassment For the purposes of sections 103(1)(e) and 123(d), an em- ployee is racially harassed in the employee’s employment if the employee’s employer or a representative of that employer uses language (whether written or spoken), or visual material, or physical behaviour that directly or indirectly— (a) expresses hostility against, or brings into contempt or ridicule, the employee on the ground of the race, colour, or ethnic or national origins of the employee; and is hurtful or offensive to the employee (whether or not that is conveyed to the employer or representative); and has, either by its nature or through repetition, a detri- mental effect on the employee’s employment, job per- formance, or job satisfaction.
(b) (c) 144 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 9 s 110 110 Duress (1) For the purposes of section 103(1)(f), an employee is sub- ject to duress in that employee’s employment in relation to membership or non-membership of a union or employees organisation if that employee’s employer or a representative of that employer directly or indirectly— (a) makes membership of a union or employees organisa- tion or of a particular union or employees organisation a condition to be fulfilled if that employee wishes to re- tain that employee’s employment; or (c) (b) makes non-membership of a union or employees organ- isation or of a particular union or employees organisa- tion a condition to be fulfilled if that employee wishes to retain that employee’s employment; or exerts undue influence on that employee, or offers, or threatens to withhold or does withhold, any incentive or advantage to or from that employee, or threatens to or does impose any disadvantage on that employee, with intent to induce that employee— (i) to become or remain a member of a union or employees organisation or a particular union or employees organisation; or to cease to be a member of a union or employees organisation or a particular union or employees organisation; or not to become a member of a union or employees organisation or a particular union or employees organisation; or in the case of an employee who is authorised to act on behalf of employees, not to act on their behalf or to cease to act on their behalf; or on account of the fact that the employee is, or, as the case may be, is not, a member of a union or employees organisation or of a particular union or employees organisation, to resign from or leave any employment; or to participate in the formation of a union or em- ployees organisation; or (ii) (iii) (iv) (v) (vi) 145 Part 9 s 110A Employment Relations Act 2000 Reprinted as at 1 July 2011 (2) (vii) not to participate in the formation of a union or employees organisation.
In this section and in section 103(1)(f), employees organisa- tion means any group, society, association, or other collec- tion of employees other than a union, however described and whether incorporated or not, that exists in whole or in part to further the employment interests of the employees belonging to it.
Compare: 1991 No 22 s 30 110A Membership of KiwiSaver scheme or complying superannuation fund [Repealed] Section 110A: repealed, on 16 December 2008, by section 9 of the Employment Relations Amendment Act 2008 (2008 No 106).
111 Definitions relating to personal grievances Each of the terms personal grievance, discrimination, sex- ual harassment, racial harassment, and duress have in any employment agreement the meanings given to those terms by sections 103, 104, 105, 106, 107, 108, 109, and 110 unless the employment agreement gives an extended meaning to the term.
Compare: 1991 No 22 s 31 112 Choice of procedures (1) Where the circumstances giving rise to a personal grievance by an employee are also such that that employee would be entitled to make a complaint under the Human Rights Act 1993, the employee may take 1, but not both, of the following steps: (a) the employee may, if the grievance is not otherwise re- solved, apply to the Authority for the resolution of the grievance: the employee may make, in relation to those circum- stances, a complaint under the Human Rights Act 1993.
For the purposes of subsection (1)(b), an employee makes a complaint when proceedings in relation to that complaint are commenced by the complainant or the Commission.
(b) (2) 146 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 9 s 114 (3) (4) If an employee applies to the Authority for a resolution of the grievance under subsection (1)(a), the employee may not exer- cise or continue to exercise any rights in relation to the subject matter of the grievance that the employee may have under the Human Rights Act 1993.
If an employee makes a complaint under subsection (1)(b), the employee may not exercise or continue to exercise any rights in relation to the subject matter of the complaint that the employee may have under this Act.

Compare: 1991 No 22 s 39 Section 112(2): substituted, on 1 January 2002, by section 71(1) of the Human Rights Amendment Act 2001 (2001 No 96).

Section 112(3): added, on 1 December 2004, by section 41 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
Section 112(4): added, on 1 December 2004, by section 41 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

113 Personal grievance provisions only way to challenge (1) dismissal If an employee who has been dismissed wishes to challenge that dismissal or any aspect of it, for any reason, in any court, that challenge may be brought only in the Authority under this Part as a personal grievance.
(2) Nothing in subsection (1) prevents an action under this Part to recover— (a) wages relating to a period of notice or alleged period of notice; or (b) wages or other money relating to the employment prior to the dismissal; or other money payable on dismissal.
(c) 114 Raising personal grievance (1) Every employee who wishes to raise a personal grievance must, subject to subsections (3) and (4), raise the grievance with his or her employer within the period of 90 days begin- ning with the date on which the action alleged to amount to a personal grievance occurred or came to the notice of the em- ployee, whichever is the later, unless the employer consents 147 Part 9 s 115 Employment Relations Act 2000 Reprinted as at 1 July 2011 (2) to the personal grievance being raised after the expiration of that period.
For the purposes of subsection (1), a grievance is raised with an employer as soon as the employee has made, or has taken reasonable steps to make, the employer or a representative of the employer aware that the employee alleges a personal grievance that the employee wants the employer to address.
(3) Where the employer does not consent to the personal grievance being raised after the expiration of the 90-day period, the employee may apply to the Authority for leave to raise the personal grievance after the expiration of that period.
(4) On an application under subsection (3), the Authority, after giving the employer an opportunity to be heard, may grant leave accordingly, subject to such conditions (if any) as it thinks fit, if the Authority— is satisfied that the delay in raising the personal (a) grievance was occasioned by exceptional circum- stances (which may include any 1 or more of the circumstances set out in section 115); and considers it just to do so.
(b) In any case where the Authority grants leave under subsection (4), the Authority must direct the employer and employee to use mediation to seek to mutually resolve the grievance.

(6) No action may be commenced in the Authority or the court in relation to a personal grievance more than 3 years after the date on which the personal grievance was raised in accordance with this section.
Compare: 1991 No 22 s 33 (5) 115 Further provision regarding exceptional circumstances under section 114 For the purposes of section 114(4)(a), exceptional circum- stances include— (a) where the employee has been so affected or traumatised by the matter giving rise to the grievance that he or she was unable to properly consider raising the grievance within the period specified in section 114(1); or 148 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 9 s 117 116 117 (1) (c) (b) where the employee made reasonable arrangements to have the grievance raised on his or her behalf by an agent of the employee, and the agent unreasonably failed to ensure that the grievance was raised within the required time; or where the employee’s employment agreement does not contain the explanation concerning the resolution of employment relationship problems that is required by section 54 or section 65, as the case may be; or (d) where the employer has failed to comply with the obli- gation under section 120(1) to provide a statement of reasons for dismissal.
Special provision where sexual harassment alleged Where a personal grievance involves allegations of sexual har- assment, no account may be taken of any evidence of the com- plainant’s sexual experience or reputation.
Compare: 1991 No 22 s 35 Sexual or racial harassment by person other than employer This section applies where— (a) a request of the kind described in section 108(1)(a) is made to an employee by a person (not being a repre- sentative of the employer) who is in the employ of the employee’s employer or who is a customer or client of the employer; or an employee is subjected to behaviour of the kind de- scribed in section 108(1)(b) by a person (not being a representative of the employer) who is in the employ of the employee’s employer or who is a customer or client of the employer; or an employee is subjected to behaviour of the kind de- scribed in section 109 by a person (not being a repre- sentative of the employer) who is in the employ of the employee’s employer or who is a customer or client of the employer.
(b) (c) 149 Part 9 s 118 Employment Relations Act 2000 Reprinted as at 1 July 2011 (2) (3) (4) 118 (1) (2) If this section applies, the employee may make a complaint about that request or behaviour to the employee’s employer or to a representative of the employer.

The employer or representative, on receiving a complaint under subsection (2), must inquire into the facts.
If the employer or representative is satisfied that the request was made or that the behaviour took place, the employer or representative must take whatever steps are practicable to pre- vent any repetition of such a request or of such behaviour.
Compare: 1991 No 22 s 36(1), (2) Sexual or racial harassment after steps not taken to prevent repetition This section applies if— (a) a person in relation to whom an employee has made a complaint under section 117(2) either— (i) makes to that employee after the complaint a re- quest of the kind described in section 108(1)(a); or subjects that employee after the complaint to be- haviour of the kind described in section 108(1)(b) or section 109; and (ii) (b) the employer of that employee, or a representative of that employer, has not taken whatever steps are practic- able to prevent the repetition of such a request or such behaviour.
If this section applies, the employee is deemed for the purposes of this Act and for the purposes of any employment agreement to have a personal grievance by virtue of having been sexually harassed or racially harassed, as the case may be, in the course of the employee’s employment as if the request or behaviour were that of the employee’s employer.
Compare: 1991 No 22 s 36(3) 119 Presumption in discrimination cases (1) Subsection (2) applies if, in any matter before the Authority or the court,— (a) the employee establishes that the employer or the em- ployer’s representative took any action or omitted any 150 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 9 s 122 (b) action as described in any of paragraphs (a) to (c) of section 104(1) in relation to that employee; and if it is a case where the employee alleges that the dis- crimination was by reason directly or indirectly of the employee’s involvement in the activities of a union, the employee establishes that he or she was a person de- scribed in section 107.
(2) If this subsection applies, there is a rebuttable presumption that the employer or representative of the employer discriminated against the employee on the grounds, or for the reason, speci- fied in section 104(1) and alleged by the employee.
120 Statement of reasons for dismissal (1) Where an employee is dismissed, that employee may, within 60 days after the dismissal or within 60 days after the em- ployee has become aware of the dismissal, whichever is the later, request the employer to provide a statement in writing of the reasons for the dismissal.

Every employer to whom a request is made under subsection (1) must, within 14 days after the day on which the request is received, provide the statement to the person who made the request.
Compare: 1991 No 22 s 38 (2) 121 Statements privileged Any statements made or information given in the course of raising a personal grievance or in the course of attempting to resolve the grievance or in the course of any matter relating to a personal grievance are absolutely privileged.
Compare: 1991 No 22 s 37 122 Nature of personal grievance may be found to be of different type from that alleged Nothing in this Part or in any employment agreement prevents a finding that a personal grievance is of a type other than that alleged.
Compare: 1991 No 22 s 34 151 Part 9 s 123 Employment Relations Act 2000 Reprinted as at 1 July 2011 Remedies in relation to personal grievances 123 Remedies (1) Where the Authority or the court determines that an employee has a personal grievance, it may, in settling the grievance, pro- vide for any 1 or more of the following remedies: (a) (b) (c) (ca) (d) reinstatement of the employee in the employee’s former position or the placement of the employee in a position no less advantageous to the employee: the reimbursement to the employee of a sum equal to the whole or any part of the wages or other money lost by the employee as a result of the grievance: the payment to the employee of compensation by the employee’s employer, including compensation for— (i) humiliation, loss of dignity, and injury to the feel- ings of the employee; and loss of any benefit, whether or not of a monetary kind, which the employee might reasonably have been expected to obtain if the personal grievance had not arisen: (ii) if the Authority or the court finds that any workplace conduct or practices are a significant factor in the per- sonal grievance, recommendations to the employer con- cerning the action the employer should take to prevent similar employment relationship problems occurring: if the Authority or the court finds an employee to have been sexually or racially harassed in his or her employ- ment, recommendations to the employer— (i) concerning the action the employer should take in respect of the person who made the request or was guilty of the harassing behaviour, which action may include the transfer of that person, the taking of disciplinary action against that person, or the taking of rehabilitative action in respect of that person: about any other action that it is necessary for the employer to take to prevent further harassment of the employee concerned or any other employee.
(2) When making an order under subsection (1)(b) or (c), the Au- thority or the court may order payment to the employee by (ii) 152 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 9 s 126 instalments, but only if the financial position of the employer requires it.

Compare: 1991 No 22 s 40 Section 123(1)(ca): inserted, on 1 December 2004, by section 42(1) of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).
Section 123(2): added, on 1 December 2004, by section 42(2) of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).
124 Remedy reduced if contributing behaviour by employee Where the Authority or the court determines that an employee has a personal grievance, the Authority or the court must, in deciding both the nature and the extent of the remedies to be provided in respect of that personal grievance,— (a) consider the extent to which the actions of the employee contributed towards the situation that gave rise to the personal grievance; and if those actions so require, reduce the remedies that would otherwise have been awarded accordingly.
(b) Compare: 1991 No 22 ss 40(2), 41(3) 125 Remedy of reinstatement (1) This section applies if— (a) (b) is determined that the employee has a personal it grievance; and the remedies sought by or on behalf of an employee in respect of a personal grievance include reinstatement (as described in section 123(1)(a)).

(2) The Authority may, whether or not it provides for any of the other remedies specified in section 123, provide for reinstate- ment if it is practicable and reasonable to do so.
Section 125: substituted, on 1 April 2011, by section 16 of the Employment Relations Amendment Act 2010 (2010 No 125).
126 Provisions applying if reinstatement ordered Where the remedy of reinstatement is provided by the Author- ity or the court, the employee must be reinstated immediately or on such date as is specified by the Authority or the court and, despite any challenge to or appeal against the determination of the Authority or the court, the provisions for reinstatement re- 153 Part 9 s 127 Employment Relations Act 2000 Reprinted as at 1 July 2011 main in full force pending the outcome of those proceedings unless the Authority or the court otherwise orders.
Compare: 1991 No 22 s 42 (2) 127 Authority may order interim reinstatement (1) The Authority may if it thinks fit, on the application of an employee who has raised a personal grievance with his or her employer, make an order for the interim reinstatement of the employee pending the hearing of the personal grievance.
The employee must, at the time of filing the application for an order under subsection (1), file a signed undertaking that the employee will abide by any order that the Authority may make in respect of damages— (a) that are sustained by the other party through the granting of the order for interim reinstatement; and that the Authority decides that the employee ought to pay.

(b) (3) The undertaking must be referred to in the order for interim reinstatement and is part of it.
(4) When determining whether to make an order for interim rein- statement, the Authority must apply the law relating to interim injunctions having regard to the object of this Act.

The order for interim reinstatement may be subject to any con- ditions that the Authority thinks fit.

The Authority may at any time rescind or vary an order made under this section.
(5) (6) (7) Nothing in this section prevents the court from granting an interim injunction reinstating an employee if the court is seized of the proceedings dealing with the personal grievance.

128 Reimbursement (1) This section applies where the Authority or the court deter- mines, in respect of any employee,— (a) (b) that the employee has a personal grievance; and that the employee has lost remuneration as a result of the personal grievance.
If this section applies then, subject to subsection (3) and sec- tion 124, the Authority must, whether or not it provides for (2) 154 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 9 s 130 any of the other remedies provided for in section 123, order the employer to pay to the employee the lesser of a sum equal to that lost remuneration or to 3 months’ ordinary time remu- neration.
(3) Despite subsection (2), the Authority may, in its discretion, order an employer to pay to an employee by way of compen- sation for remuneration lost by that employee as a result of the personal grievance, a sum greater than that to which an order under that subsection may relate.
Compare: 1991 No 22 s 41(1), (2) Disputes 129 Person bound by, or party to, employment agreement may pursue dispute under this Act (1) Where there is a dispute about the interpretation, application, or operation of an employment agreement, any person bound by the agreement or any party to the agreement may pursue that dispute in accordance with Part 10.
If the dispute relates to a collective agreement, the person or party pursuing the dispute must ensure that all union and em- ployer parties to the agreement have notice of the existence of the dispute.
Compare: 1991 No 22 s 44 (2) Recovery of wages 130 Wages and time record (1) Every employer must at all times keep a record (called the wages and time record) showing, in the case of each em- ployee employed by that employer,— the name of the employee: (a) the employee’s age, if under 20 years of age: (b) the employee’s postal address: (c) the kind of work on which the employee is usually em- (d) ployed: whether the employee is employed under an individual employment agreement or a collective agreement: (e) 155 Part 9 s 131 Employment Relations Act 2000 Reprinted as at 1 July 2011 (f) in the case of an employee employed under a collective agreement, the title and expiry date of the agreement, and the employee’s classification under it: (i) (h) (g) where necessary for the purpose of calculating the em- ployee’s pay, the hours between which the employee is employed on each day, and the days of the employee’s employment during each pay period: the wages paid to the employee each pay period and the method of calculation: details of any employment relations education leave taken under Part 7: such other particulars as may be prescribed.
(j) Every employer must, upon request by an employee or by a person authorised under section 236 to represent an employee, provide that employee or person immediately with access to or a copy of or an extract from any part or all of the wages and time record relating to the employment of the employee by the employer at any time in the preceding 6 years at which the employer was obliged to keep such a record.
(2) (3) Where an employer keeps a wages and time record in accord- ance with any other Act, that employer is not required to keep a wages and time record under this Act in respect of the same matters.

Every employer who fails to comply with any requirement of this section is liable to a penalty imposed by the Authority.
Compare: 1991 No 22 s 47 (4) 131 Arrears (1) Where— (a) (b) there has been default in payment to an employee of any wages or other money payable by an employer to an employee under an employment agreement or a contract of apprenticeship; or any payments of any such wages or other money has been made at a rate lower than that legally payable,— the whole or any part, as the case may require, of any such wages or other money may be recovered by the employee by action commenced in the prescribed manner in the Authority.
156 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 9 s 133 (2) (1A) The Authority may order payment of the wages or other money to the employee by instalments, but only if the financial pos- ition of the employer requires it.

Subsection (1) applies despite the acceptance by the employee of any payment at a lower rate or any express or implied agree- ment to the contrary.
Subsection (1) does not affect any other remedies for the re- covery of wages or other money payable by an employer to any employee under an employment agreement or a contract of apprenticeship.

Compare: 1991 No 22 s 48(1) (3) Section 131(1A): inserted, on 1 December 2004, by section 43 of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).
132 Failure to keep or produce records (1) Where any claim is brought before the Authority under section 131 to recover wages or other money payable to an employee, the employee may call evidence to show that— (a) the defendant employer failed to keep or produce a wages and time record in respect of that employee as required by this Act; and that failure prejudiced the employee’s ability to bring an accurate claim under section 131.
(b) (2) Where evidence of the type referred to in subsection (1) is given, the Authority may, unless the defendant proves that those claims are incorrect, accept as proved all claims made by the employee in respect of— (a) (b) the wages actually paid to the employee: the hours, days, and time worked by the employee.

(3) A defendant may not use as evidence any wages and time record that would be inadmissible under section 232(3).
Compare: 1991 No 22 s 50 Penalties 133 (1) Jurisdiction concerning penalties The Authority has full and exclusive jurisdiction to deal with all actions for the recovery of penalties under this Act— (a) for any breach of an employment agreement; or 157 Part 9 s 134 Employment Relations Act 2000 Reprinted as at 1 July 2011 (b) for a breach of any provision of this Act for which a penalty in the Authority is provided in the particular provision.
(2) (3) Subsection (1) is subject to— (a) sections 177 and 178 (which allow for the referral or removal of certain matters to the Employment Court); and any right to have the matter heard by the court under section 179.

(b) Subject to any rights of appeal under this Act, the court has full and exclusive jurisdiction to deal with all actions for the recovery of penalties under this Act for a breach of any other provision of this Act for which a penalty in the court is pro- vided in the particular provision.
Compare: 1991 No 22 s 51 134 Penalties for breach of employment agreement (1) Every party to an employment agreement who breaches that agreement is liable to a penalty under this Act.

Every person who incites, instigates, aids, or abets any breach of an employment agreement is liable to a penalty imposed by the Authority.
Compare: 1991 No 22 s 52 (2) 134A Penalty for obstructing or delaying Authority (1) (2) investigation Every person is liable to a penalty under this Act who, without sufficient cause, obstructs or delays an Authority investiga- tion, including failing to attend as a party before an Authority investigation (if required).
The power to award a penalty under subsection (1) may be exercised by the Authority— (a) (b) Section 134A: inserted, on 1 April 2011, by section 17 of the Employment Re- lations Amendment Act 2010 (2010 No 125).

of its own motion; or on the application of any party to the investigation.
135 Recovery of penalties (1) Any action for the recovery of a penalty may be brought,— 158 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 9 s 135 (a) (b) (c) in the case of a breach of an employment agreement, at the suit of any party to the employment agreement who is affected by the breach; or in the case of a breach of this Act, at the suit of any person in relation to whom the breach is alleged to have taken place; or if permitted in the particular penalty provision, by a Labour Inspector.
(2) Every person who is liable to a penalty under this Act is li- able,— (a) in the case of an individual, to a penalty not exceeding $10,000: in the case of a company or other corporation, to a penalty not exceeding $20,000.

(b) (3) A claim for 2 or more penalties against the same person may (4) be joined in the same action.
In any claim for a penalty the Authority or the court may give judgment for the total amount claimed, or any amount, not ex- ceeding the maximum specified in subsection (2), or the Au- thority or the court may dismiss the action.

(4B) (4A) The Authority or the court may order payment of a penalty by instalments, but only if the financial position of the person paying the penalty requires it.
In determining whether to give judgment for a penalty, and the amount of that penalty, the Authority or the court must con- sider whether the person against whom the penalty is sought has previously failed to comply with an improvement notice issued under section 223D.
(5) An action for the recovery of a penalty under this Act must be commenced within 12 months after the earlier of— (a) the date when the cause of action first became known to the person bringing the action; or the date when the cause of action should reasonably have become known to the person bringing the action.

(b) Compare: 1991 No 22 s 53 Section 135(2)(a): amended, on 1 April 2011, by section 18(1) of the Employ- ment Relations Amendment Act 2010 (2010 No 125).
Section 135(2)(b): amended, on 1 April 2011, by section 18(2) of the Employ- ment Relations Amendment Act 2010 (2010 No 125).

159 Part 9 s 136 Employment Relations Act 2000 Reprinted as at 1 July 2011 Section 135(4A): inserted, on 1 December 2004, by section 44(1) of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 135(4B): inserted, on 1 April 2011, by section 18(3) of the Employment Relations Amendment Act 2010 (2010 No 125).
Section 135(5): substituted, on 1 December 2004, by section 44(2) of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

136 Application of penalties recovered (1) Subject to any order made under subsection (2), every penalty recovered in any penalty action, whether before the Authority or the court, must be paid into the Authority or the court, as the case requires, and not to the plaintiff, and must then be paid by the Authority or the court into a Crown Bank Account.
The Authority or the court may order that the whole or any part of any penalty recovered must be paid to any person.

Compare: 1991 No 22 s 54 Section 136(1): amended, on 25 January 2005, pursuant to section 65R(3) of the Public Finance Act 1989 (1989 No 44).
Compliance orders (2) 137 Power of Authority to order compliance (1) This section applies where any person has not observed or complied with— (a) any provision of— (i) (ii) any employment agreement; or Parts 1, 3 to 6, 6A (except subpart 2), 6B, 6C, 6D, 7, and 9; or any terms of settlement or decision that section 151 provides may be enforced by compliance order; or (iii) (iiia) an enforceable undertaking that section 223C(1) provides may be enforced by compliance order; or (iiib) an improvement notice that section 223D(6) pro- (iv) (v) vides may be enforced by compliance order; or a demand notice that section 225(4) provides may be enforced by compliance order; or sections 56, 58, 77A, and 77D of the State Sector Act 1988; or 160 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 9 s 137 (vi) (vii) Parts 6 and 7 of the State Sector Act 1988; or section 11(3)(c) of the Health and Disability Ser- vices Act 1993; or (viii) clauses 5 and 6 of Schedule 1 of the Broadcasting (ix) (x) (xi) Act 1989; or sections 83, 83A, and 83B of the Fire Service Act 1975; or clauses 18, 19, and 21 of Schedule 5 of the Acci- dent Compensation Act 2001; or Part 2A (other than section 19G) and Schedule 1A of the Health and Safety in Employment Act 1992; or (b) any order, determination, direction, or requirement made or given under this Act by the Authority or a member or officer of the Authority.
(2) Where this section applies, the Authority may, in addition to any other power it may exercise, by order require, in or in con- junction with any matter before the Authority under this Act to which that person is a party or in respect of which that per- son is a witness, that person to do any specified thing or to cease any specified activity, for the purpose of preventing fur- ther non-observance of or non-compliance with that provision, order, determination, direction, or requirement.
The Authority must specify a time within which the order is to be obeyed.
The following persons may take action against another person by applying to the Authority for an order of the kind described in subsection (2): (a) (3) (4) any person (being an employee, employer, union, or employer organisation) who alleges that that person has been affected by non-observance or non-compliance of the kind described in subsection (1): a health and safety inspector appointed under section 29 of the Health and Safety in Employment Act 1992 who alleges that there has been non-observance or non-com- pliance of the kind described in subsection (1)(a)(xi).
(b) Compare: 1991 No 22 s 55(1), (2) Section 137(1)(a)(ii): substituted, on 13 December 2006, by section 8 of the Employment Relations Amendment Act 2006 (2006 No 41).

161 Part 9 s 138 Employment Relations Act 2000 Reprinted as at 1 July 2011 Section 137(1)(a)(ii): amended, on 1 April 2009, by section 9 of the Employ- ment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 (2008 No 58).
Section 137(1)(a)(iiia): inserted, on 1 April 2011, by section 19 of the Employ- ment Relations Amendment Act 2010 (2010 No 125).

Section 137(1)(a)(iiib): inserted, on 1 April 2011, by section 19 of the Employ- ment Relations Amendment Act 2010 (2010 No 125).

Section 137(1)(a)(x): substituted, on 1 April 2002, by section 337(1) of the Accident Compensation Act 2001 (2001 No 49).
Section 137(1)(a)(x): amended on 3 March 2010, pursuant to section 5(1)(b) of the Accident Compensation Amendment Act 2010 (2010 No 1).

Section 137(1)(a)(xi): added, on 5 May 2003, by section 33(3) of the Health and Safety in Employment Amendment Act 2002 (2002 No 86).

Section 137(1)(a)(xi): amended, on 1 December 2004, by section 45 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
Section 137(4): substituted, on 5 May 2003, by section 33(4) of the Health and Safety in Employment Amendment Act 2002 (2002 No 86).
138 Further provisions relating to compliance order by (1) Authority The power given to the Authority by section 137(2) may be exercised by the Authority— (a) (b) of its own motion; or on the application of— (i) (ii) any party to the matter; or in the case of section 137(4)(b), a health and safety inspector, or in the case of sections 223C, 223D(6), and 225(4)(c), a Labour Inspector.
(iii) (2) Before exercising its power under section 137(2) in relation to a person who is not a party to the matter, the Authority must give that person an opportunity to appear or be represented before the Authority.

(3) Any time specified by the Authority under section 137 may from time to time be extended by the Authority on the appli- cation of the person who is required to obey the order.
(4) A compliance order of the kind described in section 137(2)— (a) may be made subject to such terms and conditions as the Authority thinks fit (including conditions as to the actions of the applicant); and 162 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 9 s 139 (b) may be expressed to continue in force until a specified time or the happening of a specified event.
(4A) If the compliance order relates in whole or in part to the pay- ment to an employee of a sum of money, the Authority may order payment to the employee by instalments, but only if the financial position of the employer requires it.

(5) Where the Authority makes a compliance order of the kind described in section 137(2), it may then adjourn the matter, without imposing any penalty or making a final determination, to enable the compliance order to be complied with while the matter is adjourned.
(6) Where any person fails to comply with a compliance order made under section 137, the person affected by the failure may apply to the court for the exercise of its powers under section 140(6).

Compare: 1991 No 22 s 55(3)–(7) Section 138(1)(b): substituted, on 5 May 2003, by section 33(5) of the Health and Safety in Employment Amendment Act 2002 (2002 No 86).

Section 138(1)(b)(ii): amended, on 1 April 2011, by section 20 of the Employ- ment Relations Amendment Act 2010 (2010 No 125).
Section 138(1)(b)(iii): added, on 1 April 2011, by section 20 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 138(4A): inserted, on 1 December 2004, by section 46 of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).

139 Power of court to order compliance (1) This section applies where any person has not observed or complied with— (a) (b) any provision of Part 8; or any order, determination, direction, or requirement made or given under this Act by the court.
(2) Where this section applies, the court may, in addition to any other power it may exercise, by order require, in or in conjunc- tion with any proceedings under this Act to which that person is a party or in respect of which that person is a witness, that person to do any specified thing or to cease any specified ac- tivity, for the purpose of preventing further non-observance of or non-compliance with that provision, order, determination, direction, or requirement.
163 Part 9 s 140 Employment Relations Act 2000 Reprinted as at 1 July 2011 (3) The court must specify a time within which the order is to be obeyed.
(4) Where any person (being an employee, employer, union, or employer organisation) alleges that that person has been af- fected by a non-observance or non-compliance of the kind de- scribed in subsection (1), that person may commence proceed- ings against any other person in respect of the non-observance or non-compliance by applying to the court for an order of the kind described in subsection (2).
Compare: 1991 No 22 s 56(1), (2) 140 Further provisions relating to compliance order by court The power given to the court by section 139(2) may be exer- (1) cised by the court— (a) (b) on the application of any party to the proceedings; or except where the proceedings are commenced under section 139(4), of its own motion.
(2) Before exercising its power under section 139(2) in relation to a person who is not a party to the proceedings, the court must give that person an opportunity to appear or be represented before the court.

(3) Any time specified by the court under section 139 may from time to time be extended by the court on the application of the person who is required to obey the order.
(4) A compliance order of the kind described in section 139(2)— (a) may be made subject to such terms and conditions as the court thinks fit (including conditions as to the actions of the applicant); and (b) may be expressed to continue in force until a specified time or the happening of a specified event.
(5) Where the court makes a compliance order of the kind de- scribed in section 139(2), it may then adjourn the proceedings, without imposing any penalty or fine or making a final deter- mination, to enable the compliance order to be complied with while the proceedings are adjourned.
(6) Where any person fails to comply with a compliance order made under section 139, or where the court, on an application under section 138(6), is satisfied that any person has failed to 164 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 9 s 140A (b) (c) (d) (e) (b) comply with a compliance order made under section 137, the court may do 1 or more of the following things: (a) if the person in default is a plaintiff, order that the pro- ceedings be stayed or dismissed as to the whole or any part of the relief claimed by the plaintiff in the proceed- ings: if the person in default is a defendant, order that the defendant’s defence be struck out and that judgment be sealed accordingly: order that the person in default be sentenced to impris- onment for a term not exceeding 3 months: order that the person in default be fined a sum not ex- ceeding $40,000: order that the property of the person in default be se- questered.
Compare: 1991 No 22 s 56(3)–(7) 140A Compliance order in relation to disclosure of employee (1) transfer costs information This section applies where— (a) any person has not observed or complied with section 69OC, 69OD, or 69OE; or there are reasonable grounds to believe that a person will not observe or comply with section 69OC, 69OD, or 69OE.
(2) Where this section applies, the Authority may, in addition to any other power it may exercise, by order require that person to do any specified thing or to cease any specified activity for the purpose of preventing— (a) further non-observance of or non-compliance with sec- tion 69OC, 69OD, or 69OE; or non-observance of or non-compliance with section 69OC, 69OD, or 69OE.

(b) (3) The Authority must specify a time within which the order is to be obeyed.
(4) An application to the Authority for an order of the kind de- scribed in subsection (2) may be made by the following per- sons: 165 Part 9 s 141 Employment Relations Act 2000 Reprinted as at 1 July 2011 (a) (b) (c) (d) a person who has made or proposes to make a request under section 69OC(2): a person who has required another person to provide information under section 69OD(2), (4), or (5): an employee who would be eligible to elect to transfer to the new employer under section 69I: a union of which the employee is a member.
(5) Where a person alleges that a person has been or would be affected by non-observance of or non-compliance with section 69OC, 69OD, or 69OE, that person may take action against another person by applying to the Authority for an order of the kind described in subsection (2).

The power given to the Authority by subsection (2) may be exercised by the Authority— (a) (b) of its own motion; or on the application of a person described in subsec- tion (4).
(6) (7) (8) Sections 138(2) to (4), (5), and (6), 140(6), and 161 apply, with all necessary modifications, to a compliance order under subsection (2) as if the compliance order were a compliance order made under section 137(2).
For the purposes of section 161(1), any non-observance of or non-compliance with or proposed non-observance of or non- compliance with section 69OC, 69OD, or 69OE or failure to comply with a compliance order under subsection (2) is to be treated as if it were an employment relationship problem.

Section 140A: inserted, on 13 December 2006, by section 9 of the Employment Relations Amendment Act 2006 (2006 No 41).
Enforcement of order 141 Enforcement of order Any order made or judgment given under this Act by the Au- thority or the court (including an order imposing a fine) may be filed in any District Court, and is then enforceable in the same manner as an order made or judgment given by the Dis- trict Court.
Compare: 1991 No 22 s 58 166 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 143 Limitation period for actions other than personal grievances 142 Limitation period for actions other than personal grievances No action may be commenced in the Authority or the court in relation to an employment relationship problem that is not a personal grievance more than 6 years after the date on which the cause of action arose.
Part 10 Institutions 143 Object of this Part The object of this Part is to establish procedures and institu- tions that— (a) (b) (c) (d) (da) (e) (f) (fa) support successful employment relationships and the good faith obligations that underpin them; and recognise that employment relationships are more likely to be successful if problems in those relationships are resolved promptly by the parties themselves; and recognise that, if problems in employment relationships are to be resolved promptly, expert problem-solving support, information, and assistance needs to be avail- able at short notice to the parties to those relationships; and recognise that the procedures for problem-solving need to be flexible; and recognise that the person who provides mediation ser- vices can manage any mediation process actively; and recognise that there will always be some cases that re- quire judicial intervention; and recognise that judicial intervention at the lowest level needs to be that of a specialist decision-making body that is not inhibited by strict procedural requirements; and ensure that investigations by the specialist deci- sion-making body are, generally, concluded before any higher court exercises its jurisdiction in relation to the investigations; and 167 Part 10 s 144 Employment Relations Act 2000 Reprinted as at 1 July 2011 (g) recognise that difficult issues of law will need to be de- termined by higher courts.
Section 143(da): inserted, on 1 December 2004, by section 47(1) of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 143(fa): inserted, on 1 December 2004, by section 47(2) of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

Mediation services 144 Mediation services (1) The chief executive must employ or engage persons to provide mediation services to support all employment relationships.
Those mediation services may include— (a) (2) the provision of general information about employment rights and obligations: the provision of information about what services are available for persons (including unions and other bod- ies corporate) who have employment relationship prob- lems: other services that assist the smooth conduct of employ- ment relationships: other services (of a type that can address a variety of cir- cumstances) that assist persons to resolve, promptly and effectively, their employment relationship problems: services that assist persons to resolve any problem with the fixing of new terms and conditions of employment.
(b) (c) (d) (e) 144A Dispute resolution services (1) Nothing in this Act prevents the chief executive from provid- ing dispute resolution services to parties in work-related rela- tionships that are not employment relationships.

Services provided in accordance with this section proceed on the basis specified in writing by the chief executive.

Section 144A: inserted, on 1 December 2004, by section 48 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
(2) 145 Provision of mediation services (1) The chief executive, by way of general instructions under sec- tion 153(2) and (3),— 168 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 146 (a) may decide how the mediation services required by sec- tion 144 are to be provided; and (b) may, in order to promote fast and effective resolutions, treat matters presented for mediation in different ways.
(2) Any of the mediation services may be provided, for ex- ample,— (a) by a telephone, facsimile, Internet, or e-mail service (whether as a means of explaining where information can be found or as a means of actually providing the in- formation or of otherwise seeking to resolve the prob- lem); or by publishing pamphlets, brochures, booklets, or codes; or by specialists who— (i) (b) (c) (ii) respond to requests or themselves identify how, where, and when their services can best support the object of this Act; or provide their services in the manner, and at the time and place (including wherever practicable the workplace itself), that are most likely to re- solve the problem in question; or provide their services in all of the ways described in this paragraph.
(3) Any of the mediation services may be provided— (iii) (a) (b) by a combination of the ways described in subsection (2); or in such other ways as the chief executive thinks fit to best support the object of this Act.

(4) Subsections (2) and (3) do not limit subsection (1).

Section 145(1): substituted, on 1 December 2004, by section 49 of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).
146 Access to mediation services A person who wishes to access mediation services must con- tact an office of the department that deals with employment relations issues.

169 Part 10 s 147 Employment Relations Act 2000 Reprinted as at 1 July 2011 (2) 147 Procedure in relation to mediation services (1) Where mediation services are provided, the person who pro- vides the services decides what services are appropriate to the particular case.
That person, in providing those services,— (a) may, having regard to the object of this Act and the needs of the parties, follow such procedures, whether structured or unstructured, or do such things as he or she considers appropriate to resolve the problem or dispute promptly and effectively; and (ab) may offer mediation services on the basis that, prior to the commencement of a mediation, the parties have agreed— (i) that the services will be limited to a specified time; and if the problem is not resolved within the speci- fied time, the parties will resolve the problem by using the process in section 150 (with any neces- sary modifications); and (ii) (ac) may assist the parties to resolve a problem at an early stage, including, at the request of a party, discussing the problem with that party without any representative of that party being present; and (b) may receive any information, statement, admission, document, or other material, in any way that he or she thinks fit, whether or not it would be admissible in judicial proceedings.
To avoid doubt, the person who provides the services also decides the procedures that will be followed, which may in- clude— (a) addressing any party to the matter without any repre- sentative of that party being present: expressing to any party his or her views on the substance of 1 or more of the issues between the parties— (i) with or without any representative of the party being present: (b) (ii) with or without any other party or parties to the matter being present: (3) 170 Reprinted as at 1 July 2011 (c) Employment Relations Act 2000 Part 10 s 148 expressing to any party his or her views on the process the party is following or the position the party has adopted about the employment relationship problem— with or without any representative of the party (i) being present: (ii) with or without any other party or parties to the matter being present.
Section 147(2)(ab): inserted, on 1 December 2004, by section 50(1) of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 147(2)(ac): inserted, on 1 April 2011, by section 21 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 147(3): added, on 1 December 2004, by section 50(2) of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).
148 Confidentiality (1) Except with the consent of the parties or the relevant party, a person who— (a) (b) (c) (d) provides mediation services; or is a person to whom mediation services are provided; or is a person employed or engaged by the department; or is a person who assists either a person who provides me- diation services or a person to whom mediation services are provided— must keep confidential any statement, admission, or document created or made for the purposes of the mediation and any in- formation that, for the purposes of the mediation, is disclosed orally in the course of the mediation.
(2) No person who provides mediation services may give evi- dence in any proceedings, whether under this Act or any other Act, about— (a) (b) the provision of the services; or anything, related to the provision of the services, that comes to his or her knowledge in the course of the pro- vision of the services.
(3) No evidence is admissible in any court, or before any person acting judicially, of any statement, admission, document, or information that, by subsection (1), is required to be kept con- fidential.

171 Part 10 s 148A Employment Relations Act 2000 Reprinted as at 1 July 2011 (4) Nothing in the Official Information Act 1982 applies to any statement, admission, document, or information disclosed or made in the course of the provision of mediation services to the person providing those services.
(5) Where mediation services are provided for the purpose of as- sisting persons to resolve any problem in determining or agree- ing on new collective terms and conditions of employment, subsections (1) and (3) do not apply to any statement, admis- sion, document, or information disclosed or made in the course of the provision of any such mediation services.
(6) Nothing in this section— (a) (b) (c) (d) prevents the discovery or affects the admissibility of any evidence (being evidence which is otherwise discover- able or admissible and which existed independently of the mediation process) merely because the evidence was presented in the course of the provision of mediation services; or prevents the gathering of information by the department for research or educational purposes so long as the par- ties and the specific matters in issue between them are not identifiable; or prevents the disclosure by any person employed or en- gaged by the department to any other person employed or engaged by the department of matters that need to be disclosed for the purposes of giving effect to this Act; or applies in relation to the functions performed, or powers exercised, by any person under section 149(2) or section 150(2).
148A Minimum entitlements (1) Minimum entitlements may be the subject of— (a) mediation under this Part; and (b) agreed terms of settlement under section 149(1).
(2) Despite subsection (1), a person who is employed or engaged by the chief executive to provide mediation services and who holds a general authority to sign agreed terms of settlement under section 149(1) must not sign agreed terms of settlement 172 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 149 in which a party agrees to forgo all, or part, of the party’s minimum entitlements.
Section 148A: inserted, on 1 April 2011, by section 22 of the Employment Re- lations Amendment Act 2010 (2010 No 125).
149 Settlements (1) Where a problem is resolved, whether through the provision of mediation services or otherwise, any person— (a) who is employed or engaged by the chief executive to provide the services; and (b) who holds a general authority, given by the chief ex- ecutive, to sign, for the purposes of this section, agreed terms of settlement,— may, at the request of the parties to the problem, and under that general authority, sign the agreed terms of settlement.
(2) Any person who receives a request under subsection (1) must, before signing the agreed terms of settlement,— (a) (b) explain to the parties the effect of subsection (3); and be satisfied that, knowing the effect of that subsection, the parties affirm their request.
(3) Where, following the affirmation referred to in subsection (2) of a request made under subsection (1), the agreed terms of settlement to which the request relates are signed by the person empowered to do so,— (a) (ab) (b) those terms are final and binding on, and enforceable by, the parties; and the terms may not be cancelled under section 7 of the Contractual Remedies Act 1979; and except for enforcement purposes, no party may seek to bring those terms before the Authority or the court, whether by action, appeal, application for review, or otherwise.
(3A) For the purposes of subsection (3), a minor aged 16 years or over may be a party to agreed terms of settlement, and be bound by that settlement, as if the minor were a person of full age and capacity.

(4) A person who breaches an agreed term of settlement to which subsection (3) applies is liable to a penalty imposed by the Authority.
173 Part 10 s 149A Employment Relations Act 2000 Reprinted as at 1 July 2011 Section 149(3)(ab): inserted, on 1 December 2004, by section 51(1) of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 149(3A): inserted, on 1 April 2011, by section 23 of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 149(4): added, on 1 December 2004, by section 51(2) of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).
149A Recommendation to parties (1) The parties to a problem may agree in writing— (a) to confer the power to make a written recommendation in relation to the matters in issue on a person employed or engaged by the chief executive to provide mediation services; and on the date on which that person’s recommendation will become final, unless the parties do not accept the recom- mendation.
(b) (2) (b) The person on whom the power is conferred must, before mak- ing and signing a recommendation under that power,— (a) explain to the parties the effect of subsections (4) and (5); and be satisfied that, knowing the effect of those subsec- tions, the parties affirm their agreement.
(3) Where, following the affirmation referred to in subsection (2) of an agreement made under subsection (1), a recommendation is made and signed by the person empowered to do so, a party has until the date agreed under subsection (1)(b) to give written notice to the person who made the recommendation that the party does not accept the recommendation.
If a party gives notice under subsection (3) that the party does not accept the recommendation,— (a) (4) further mediation services may be provided in order to attempt to resolve the problem; and either party to the problem may request those services be provided by a person other than the person who made the recommendation.
(b) If a party does not give notice under subsection (3),— (a) the recommendation becomes final and binding on, and enforceable by, the parties; and (5) 174 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 150A (b) a party may not seek to bring that recommendation be- fore the Authority or the court, whether by action, ap- peal, application for review, or otherwise, except for en- forcement purposes.
Section 149A: inserted, on 1 April 2011, by section 24 of the Employment Re- lations Amendment Act 2010 (2010 No 125).

150 Decision by authority of parties (1) The parties to a problem may agree in writing to confer on a person employed or engaged by the chief executive to provide mediation services, the power to decide the matters in issue.
The person on whom the power is conferred must, before mak- ing and signing a decision under that power,— (a) (b) explain to the parties the effect of subsection (3); and be satisfied that, knowing the effect of that subsection, the parties affirm their agreement.
(2) (3) Where, following the affirmation referred to in subsection (2) of an agreement made under subsection (1), a decision on how to resolve a problem is made and signed by the person empow- ered to do so,— (a) that decision is final and binding on, and enforceable by, the parties; and except for enforcement purposes, no party may seek to bring that decision before the Authority or the court, whether by action, appeal, application for review, or otherwise.
(b) (4) A person who breaches a term of a decision to which subsec- tion (3) applies is liable to a penalty imposed by the Authority.

Section 150(4): added, on 1 December 2004, by section 52 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
150A Payment on resolution of problem (1) Any payment by one party to another, required by any agreed terms of settlement under section 149(3) or decision under sec- tion 150(3), must be paid directly to the other party and not to a representative of that party, and the party receiving the payment may not receive, or agree to receive, payment in any other manner.
175 Part 10 s 151 Employment Relations Act 2000 Reprinted as at 1 July 2011 (2) (3) For the purposes of this Act, a payment that does not comply with subsection (1) is to be treated as if the payment has not been made.
Subsection (1) does not— (a) apply if the party to whom the payment is required to be made is receiving or has received legal aid under the Legal Services Act 2000 for any matter related to the employment relationship problem giving rise to the mediation; or prevent a payment being made to the other party’s so- licitor.

(b) Section 150A: inserted, on 1 December 2004, by section 53 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
151 Enforcement of terms of settlement agreed or authorised (1) This section applies to— (a) any agreed terms of settlement that are enforceable by the parties under section 149(3): any recommendation that is enforceable by the parties under section 149A(5): any decision that is enforceable by the parties under section 150(3).
(b) (c) (2) A matter referred to in subsection (1) may be enforced— (a) (b) by compliance order under section 137; or in the case of a monetary settlement, in one of the fol- lowing ways: (i) (ii) by compliance order under section 137: by using, as if the settlement, recommendation, or decision were an order enforceable under sec- tion 141, the procedure applicable under section 141.

Section 151: substituted, on 1 April 2011, by section 25 of the Employment Relations Amendment Act 2010 (2010 No 125).
152 Mediation services not to be questioned as being inappropriate (1) No mediation services may be challenged or called in question in any proceedings on the ground— 176 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 153 (a) (b) that the nature and content of the services was inappro- priate; or that the manner in which the services were provided was inappropriate.
(2) Nothing in subsection (1) or in sections 149 and 150 prevents any agreed terms of settlement signed under section 149 or any decision made and signed under section 150 from being challenged or called in question on the ground that,— (a) (b) in the case of terms signed under section 149, the pro- visions of subsections (2) and (3) of that section (which relate to knowledge about the effect of a settlement) were not complied with; and in the case of a decision made and signed under section 150, the provisions of subsections (2) and (3) of that section (which relate to knowledge about the effect of conferring decision-making power on the person pro- viding mediation services) were not complied with.
153 (1) (2) (b) Independence of mediation personnel The chief executive must ensure that any person employed or engaged to provide mediation services under section 144— (a) is, in deciding how to handle or deal with any particular problem or aspect of it, able to act independently; and is independent of any of the parties to whom mediation services are being provided in a particular case.
The chief executive, in managing the overall provision of me- diation services, is not prevented by subsection (1) from giving general instructions about the manner in which, and the times and places at which, mediation services are to be provided.

(3) Any such general instructions may include general instruc- tions about the manner in which mediation services are to be provided in relation to particular types of matters or particular types of situations or both.
(4) Where a Labour Inspector is a party to any matter in respect of which a person employed or engaged by the chief executive is providing mediation services, the fact that the Labour In- spector and that person are employed by the same employer is not a ground for challenging the independence of that person.
177 Part 10 s 154 Employment Relations Act 2000 Reprinted as at 1 July 2011 (5) Where the chief executive is a party to any matter in respect of which a person employed or engaged by the chief executive is providing mediation services, that fact is not a ground for challenging the independence of that person.
(6) No person who is employed or engaged by the chief executive to provide mediation services may— (a) hold office, at the same time, as a member of the Au- thority; or be employed, at the same time, to staff or support— (i) (ii) the Authority under section 185; or the court under section 198.

(b) 154 Other mediation services Nothing in this Part prevents any person seeking and using mediation services other than those provided by the chief ex- ecutive under section 144.
Compare: 1991 No 22 s 78(5) (2) 155 Arbitration (1) Nothing in this Act prevents the parties to an employment agreement from agreeing to submit an employment relation- ship problem to arbitration.

If the parties to an employment agreement purport to submit an employment relationship problem to arbitration,— (a) nothing in the Arbitration Act 1996 applies in respect of that submission; and the parties must determine the procedure for the arbitra- tion.
(b) The submission of an employment relationship problem to ar- bitration does not— (a) prevent any of the parties from using mediation services or applying to the Authority or the court in accordance with this Part; or otherwise affect the application of this Act.

(b) (3) 178 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 159 Employment Relations Authority 156 Employment Relations Authority This section establishes an authority called the Employment Relations Authority.
157 Role of Authority (1) (2) The Authority is an investigative body that has the role of re- solving employment relationship problems by establishing the facts and making a determination according to the substantial merits of the case, without regard to technicalities.
The Authority must, in carrying out its role,— (a) (b) (c) (d) (2A) [Repealed] (3) comply with the principles of natural justice; and aim to promote good faith behaviour; and support successful employment relationships; and generally further the object of this Act.
The Authority must act as it thinks fit in equity and good con- science, but may not do anything that is inconsistent with— (a) (b) (c) Section 157(2A): repealed, on 1 April 2011, by section 26 of the Employment Relations Amendment Act 2010 (2010 No 125).

this Act; or any regulations made under this Act; or the relevant employment agreement.

Section 157(3): substituted, on 1 April 2011, by section 26 of the Employment Relations Amendment Act 2010 (2010 No 125).
158 Lodging of applications Proceedings before the Authority are to be commenced by the lodging of an application in the prescribed form.
159 Duty of Authority to consider mediation (1) Where any matter comes before the Authority for determin- ation, the Authority— (a) must, whether through a member or through an officer, first consider whether an attempt has been made to re- solve the matter by the use of mediation; and (b) must direct that mediation or further mediation, as the case may require, be used before the Authority investi- 179 Part 10 s 159A Employment Relations Act 2000 Reprinted as at 1 July 2011 gates the matter, unless the Authority considers that the use of mediation or further mediation— (i) will not contribute constructively to resolving the matter; or (ii) will not, in all the circumstances, be in the public interest; or (iii) will undermine the urgent or interim nature of the proceedings; or (iv) will be otherwise impractical or inappropriate in the circumstances; and (c) must, in the course of investigating any matter, consider from time to time, as the Authority thinks fit, whether to direct the parties to use mediation.
If the matter before the Authority was brought by a Labour Inspector and relates to an employee’s minimum entitlements, the Authority must, before giving a direction under subsection (1)(b) or (c), consider whether it is appropriate to direct that mediation or further mediation be used in order to prevent the matter being resolved in a manner that involves a reduction of those minimum entitlements.
(1A) (2) Where the Authority gives a direction under subsection (1)(b) or subsection (1)(c), the parties must comply with the direction and attempt in good faith to reach an agreed settlement of their differences, and proceedings in relation to the request before the Authority are suspended until the parties have done so or the Authority otherwise directs (whichever first occurs).
Section 159(1)(b)(iii): amended, on 1 April 2011, by section 27(1) of the Em- ployment Relations Amendment Act 2010 (2010 No 125).

Section 159(1)(b)(iv): added, on 1 April 2011, by section 27(1) of the Employ- ment Relations Amendment Act 2010 (2010 No 125).

Section 159(1A): inserted, on 1 April 2011, by section 27(2) of the Employment Relations Amendment Act 2010 (2010 No 125).
159A Duty of Authority to prioritise previously mediated matters This section applies if a matter comes before the Authority for investigation and determination and an attempt has been made to resolve the matter by mediation.
(1) 180 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 160 (2) The Authority must give priority to investigating and deter- mining the matter referred to in subsection (1) over any other matters in which mediation has not been used unless the Au- thority considers that providing mediation services would be inappropriate having regard to section 159(1) or (1A).

Section 159A: inserted, on 1 April 2011, by section 28 of the Employment Re- lations Amendment Act 2010 (2010 No 125).
160 Powers of Authority (1) The Authority may, in investigating any matter,— (a) call for evidence and information from the parties or from any other person: require the parties or any other person to attend an in- vestigation meeting to give evidence: interview any of the parties or any person at any time before, during, or after an investigation meeting: in the course of an investigation meeting, fully examine any witness: decide that an investigation meeting should not be in public or should not be open to certain persons: follow whatever procedure the Authority considers ap- propriate.
(b) (c) (d) (e) (f) (2) The Authority may take into account such evidence and infor- mation as in equity and good conscience it thinks fit, whether strictly legal evidence or not.

(3) (2A) The Authority must allow cross-examination of a party or a person to the extent that is consistent with subsection (2).
The Authority is not bound to treat a matter as being a matter of the type described by the parties, and may, in investigating the matter, concentrate on resolving the employment relationship problem, however described.

The Authority may not make a freezing order or search order as provided for in the High Court Rules.

Section 160(1)(c): amended, on 1 December 2004, by section 54 of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).
(4) Section 160(2A): inserted, on 1 April 2011, by section 29(1) of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 160(4): added, on 1 April 2011, by section 29(2) of the Employment Relations Amendment Act 2010 (2010 No 125).
181 Part 10 s 161 Employment Relations Act 2000 Reprinted as at 1 July 2011 161 (1) Jurisdiction The Authority has exclusive jurisdiction to make determin- ations about employment relationship problems generally, in- cluding— (a) disputes about the interpretation, application, or oper- ation of an employment agreement: (b) matters related to a breach of an employment agree- ment: (c) matters about whether a person is an employee (not being matters arising on an application under section 6(5)): facilitating bargaining under sections 50A to 50I: (ca) (cb) fixing the provisions of a collective agreement under (cc) section 50J: determining whether an employer has complied with section 69AAE: (da) (d) matters alleged to arise under section 68 because a party to an individual employment agreement has bargained unfairly: investigating bargaining under section 69O and, if necessary, determining redundancy entitlements under that section: personal grievances: matters about whether the good faith obligations im- posed by this Act (including those that apply where a union and an employer bargain for a collective agree- ment) have been complied with in a particular case: (e) (f) (g) matters about the recovery of wages or other money under section 131: (i) (h) matters about whether the rules of a union, or of an incorporated society that wishes to register as a union, comply with the provisions of this Act: matters about whether an incorporated society is en- titled to register under this Act as a union or is entitled to continue to be so registered: matters about whether a person is entitled to be a mem- ber of a union: (j) (k) matters related to a failure by a union to comply with its rules: 182 Reprinted as at 1 July 2011 (l) (m) Employment Relations Act 2000 Part 10 s 161 any proceedings related to a strike or lockout (other than those founded on tort or seeking an injunction): actions for the recovery of penalties— (i) under this Act for a breach of an employment agreement: under this Act for a breach of any provision of
 this Act (being a provision that provides for the penalty to be recovered in the Authority): under section 76 of the Holidays Act 2003: under section 10 of the Minimum Wage Act 1983: under section 13 of the Wages Protection Act 1983: (ii) (iii) (iv) (v) (2) (3) (s) (n) (o) (p) (q) (r) compliance orders under section 137: objections under section 225 to demand notices: orders for interim reinstatement under section 127: actions of the type referred to in section 228(1): any other action (being an action that is not directly within the jurisdiction of the court) arising from or re- lated to the employment relationship or related to the interpretation of this Act (other than an action founded on tort): determinations under such other powers and functions as are conferred on it by this or any other Act.
Except as provided in subsection (1)(ca), (cb), (d), (da), and (f), the Authority does not have jurisdiction to make a deter- mination about any matter relating to— bargaining; or (a) (b) the fixing of new terms and conditions of employment.

Except as provided in this Act, no court has jurisdiction in relation to any matter that, under subsection (1), is within the exclusive jurisdiction of the Authority.
Compare: 1991 No 22 s 79(1)(b)–(g), (j) Section 161(1)(ca): inserted, on 1 December 2004, by section 55(1) of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 161(1)(cb): inserted, on 1 December 2004, by section 55(1) of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 161(1)(cc): inserted, on 1 July 2008, by section 6 of the Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).
183 Part 10 s 162 Employment Relations Act 2000 Reprinted as at 1 July 2011 Section 161(1)(da): inserted, on 1 December 2004, by section 55(2) of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

Section 161(1)(da): amended, on 14 September 2006, by section 10 of the Em- ployment Relations Amendment Act 2006 (2006 No 41).

Section 161(1)(m)(iii): amended, on 1 April 2004, by section 91(2) of the Holi- days Act 2003 (2003 No 129).
Section 161(2): amended, on 1 December 2004, by section 55(3) of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).
162 Application of law relating to contracts Subject to sections 163 and 164, the Authority may, in any matter related to an employment agreement, make any order that the High Court or a District Court may make under any enactment or rule of law relating to contracts, including— (a) (b) (c) (d) (e) (f) (g) Compare: 1991 No 22 s 104(1)(h) the Contracts (Privity) Act 1982: the Contractual Mistakes Act 1977: the Contractual Remedies Act 1979: the Fair Trading Act 1986: the Frustrated Contracts Act 1944: the Illegal Contracts Act 1970: the Minors’ Contracts Act 1969.
163 Restriction on Authority’s power in relation to collective agreements The Authority may not, under section 162 or any other provi- sion of this Act, make in respect of a collective agreement an order cancelling or varying the agreement or any term of the agreement.
Compare: 1991 No 22 s 104(2) 164 Application to individual employment agreements of law relating to contracts Where the Authority, has, under section 69(1)(b) or section 162, the power to make an order cancelling or varying an in- dividual employment agreement or any term of such an agree- ment, the Authority may make such an order only if— (a) the Authority (whether or not it gave any direction under section 159(1)(b) in relation to the matter)— 184 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 166A (i) (ii) has identified the problem in relation to the agree- ment; and has directed the parties to attempt in good faith to resolve that problem; and the parties have attempted in good faith to resolve the problem relating to the agreement by using mediation; and despite the use of mediation, the problem has not been resolved; and the Authority is satisfied that any remedy other than such an order would be inappropriate or inadequate.
(b) (c) (d) Compare: 1991 No 22 s 104(2) 165 Other provisions relating to investigations of Authority The provisions of Schedule 2 have effect in relation to the Authority and matters within its jurisdiction.

166 Membership of Authority The Authority consists of— (1) (a) 1 member who is to be appointed as the Chief of the Employment Relations Authority: at least 2 other members.

(b) For the purposes of any matter within its jurisdiction, the Au- thority consists of 1 member of the Authority.
[Repealed] Compare: 1991 No 22 s 81(1), (2) (2) (3) Section 166(3): repealed, on 1 April 2011, by section 30 of the Employment Relations Amendment Act 2010 (2010 No 125).
166A Role of Chief of Authority (1) In addition to deciding matters as a member of the Authority, the Chief of the Authority is responsible for— (a) making any arrangements that are practicable to ensure that the members of the Authority discharge their func- tions— (i) (ii) directing the education, training, and professional de- velopment of members of the Authority.
in an orderly and expeditious way; and in a way that meets the objects of this Act; and (b) 185 Part 10 s 167 Employment Relations Act 2000 Reprinted as at 1 July 2011 (2) Without limiting subsection (1), the Chief of the Authority may— (a) (b) issue instructions (not inconsistent with this Act or regulations made under it) that outline expectations in respect of the process, timeliness, or any other matter relating to the hearing and determination of matters before the Authority; and require particular members of the Authority to investi- gate particular matters.
(3) For the purposes of section 169(3), the Chief of the Authority may provide a report to the Minister in respect of any mem- ber of the Authority in regard to the member’s adherence to and compliance with any instructions issued under subsection (2)(a).

Section 166A: inserted, on 1 April 2011, by section 31 of the Employment Re- lations Amendment Act 2010 (2010 No 125).
167 Appointment of members Each member of the Authority is to be appointed by the Gov- ernor-General on the recommendation of the Minister.

Compare: 1991 No 22 s 82(1) 168 Oath of office Each member of the Authority must, before entering on the exercise of any of his or her functions as a member of the Au- thority, swear or affirm before a Judge of the court that the member of the Authority will faithfully and impartially per- form his or her duties as a member of the Authority.
Compare: 1991 No 22 s 82(3) 169 Term of office (1) Every member of the Authority is to be appointed for a term not exceeding 4 years.

(2) A member of the Authority is eligible for reappointment from time to time.
Before recommending the reappointment of a member of the Authority under section 167, the Minister must, if the Chief of (3) 186 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 171 the Authority has provided a report in respect of the member under section 166A(3), consider that report.

Compare: 1991 No 22 s 83 Section 169(3): added, on 1 April 2011, by section 32 of the Employment Re- lations Amendment Act 2010 (2010 No 125).
170 Vacation of office (1) A member of the Authority may at any time be removed from office by the Governor-General for incapacity affecting per- formance of duty, neglect of duty, or misconduct, proved to the satisfaction of the Governor-General.

(2) A member of the Authority is deemed to have vacated his or her office if he or she is, under the Insolvency Act 2006, ad- judged bankrupt.
(3) A member of the Authority may at any time resign his or her office by giving notice in writing to that effect to the Minister.

Compare: 1991 No 22 s 84 Section 170(2): amended, on 3 December 2007, by section 445 of the Insol- vency Act 2006 (2006 No 55).
171 Salaries and allowances (1) (b) There is to be paid to each member of the Authority, out of pub- lic money, without further appropriation than this section,— (a) a salary at such rate or in accordance with such scale of rates as the Remuneration Authority from time to time determines; and subject to subsection (2), such allowances as are from time to time determined by the Remuneration Authority.
There is to be paid to each member of the Authority, in respect of time spent travelling in the exercise of the Authority’s func- tions, travelling allowances and expenses in accordance with the Fees and Travelling Allowances Act 1951; and the provi- sions of that Act apply accordingly as if the member were a member of a statutory board and the travelling were in the ser- vice of a statutory board.
In the case of the Chief of the Authority, the rate of salary and the allowances determined may be higher than those for the other members of the Authority.

(2) (3) 187 Part 10 s 172 Employment Relations Act 2000 Reprinted as at 1 July 2011 (4) Nothing in subsection (1) prevents in an appropriate case pay- ment to a member of the Authority of a salary and allowances on a per diem basis.
Compare: 1991 No 22 s 86(1)–(3) Section 171(1)(a): amended, on 1 April 2003, by section 4(1) of the Remuner- ation Authority (Members of Parliament) Amendment Act 2002 (2002 No 54).

Section 171(1)(b): amended, on 1 April 2003, by section 4(1) of the Remuner- ation Authority (Members of Parliament) Amendment Act 2002 (2002 No 54).
172 Temporary appointments (1) The Governor-General may from time to time, on the recom- mendation of the Minister, appoint 1 or more temporary mem- bers of the Authority to hold office for such period as may be specified in the instrument of appointment.

The period so specified may not exceed 12 months; but any person appointed under this section may from time to time be reappointed.

(2) (3) A person so appointed has all the powers of a member.
(4) Every person appointed as a temporary member of the Au- thority under this section is, during the term of that member’s appointment, to be paid, on a per diem basis,— (a) such salary, payable pursuant to section 171 to a mem- ber of the Authority, as the Governor-General directs; and the allowances to which that person would be entitled if that person held office under section 166(1).
(b) Compare: 1991 No 22 s 87(1)–(4) 173 Procedure (1) The Authority, in exercising its powers and performing its functions, must— (a) (b) comply with the principles of natural justice; and act in a manner that is reasonable, having regard to its investigative role.

(2) The Authority may exercise its powers under section 160 in the absence of 1 or more of the parties.
(3) However, if the Authority acts under subsection (2), the Au- thority must provide an absent party with— 188 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 173A (a) (b) any material it receives that is relevant to the case of the absent party; and an opportunity to comment on the material before the Authority takes it into account.
To avoid doubt, subsections (2) and (3) do not limit the powers of the Authority to make ex parte orders (except a freezing order or search order as provided for in the High Court Rules).

The Authority may meet with the parties at the times and places fixed by a member of the Authority or an officer of the Authority.
(4) (5) (6) Meetings of the Authority may be adjourned from time to time and from place to place by a member of the Authority or an officer of the Authority designated for the purpose by the chief executive, whether at any meeting or at any time before the time fixed for the meeting.

Section 173: substituted, on 1 April 2011, by section 33 of the Employment Relations Amendment Act 2010 (2010 No 125).
173A Recommendation to parties (1) The parties to an employment relationship problem may agree in writing— (a) to confer the power to make a written recommendation in relation to the matters in issue on a member of the Authority; and on the date on which the member’s recommendation will become final, unless the parties do not accept the recommendation.
(b) (2) (b) The member must, before making and signing a recommenda- tion under that power,— (a) explain to the parties the effect of subsections (4) and (5); and be satisfied that, knowing the effect of those subsec- tions, the parties affirm their agreement.
(3) Where, following the affirmation referred to in subsection (2) of an agreement made under subsection (1), a recommendation is made and signed by the member empowered to do so, a party has until the date agreed under subsection (1)(b) to give written notice to the member who made the recommendation that the party does not accept the recommendation.
189 Part 10 s 174 Employment Relations Act 2000 Reprinted as at 1 July 2011 (4) (5) (b) If a party gives notice under subsection (3) that the party does not accept the recommendation,— (a) the Authority must continue to investigate and deter- mine the matter; and either party to the problem may request that the matter be further investigated and determined by a member other than the member who made the recommendation.
If a party does not give notice under subsection (3), the rec- ommendation becomes final and must be treated as the Au- thority’s determination of the matter.

(6) However, a recommendation under subsection (5) need not comply with section 174(a) (which relates to the content of a determination made by the Authority).

Section 173A: inserted, on 1 April 2011, by section 33 of the Employment Re- lations Amendment Act 2010 (2010 No 125).
174 Determinations In recording its determination on any matter before it, the Au- thority, for the purpose of delivering speedy, informal, and practical justice to the parties,— (a) must— (i) (ii) state relevant findings of fact; and state and explain its findings on relevant issues of law; and express its conclusions on the matters or issues it considers require determination in order to dis- pose of the matter; and specify what orders (if any) it is making; but (iii) (iv) need not— (i) set out a record of all or any of the evidence heard or received; or record or summarise any submissions made by the parties; or indicate why it made, or did not make, specific findings as to the credibility of any evidence or person; or record the process followed in investigating and determining the matter.
(ii) (iii) (iv) (b) 190 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 177 175 Seal of Authority The Authority is to have a seal, which is to be judicially noticed by all courts and for all purposes.
Compare: 1991 No 22 s 89 176 Protection of members of Authority, etc (1) A member of the Authority, in the performance of his or her duties under this Act, has and enjoys the same protection as a Justice of the Peace acting in his or her criminal jurisdiction has and enjoys under Part 7 of the Summary Proceedings Act 1957.
For the avoidance of doubt as to the privileges and immunities of members of the Authority and of parties, representatives, and witnesses in the proceedings of the Authority, it is declared that such proceedings are judicial proceedings.
Compare: 1991 No 22 s 92 (2) 177 Referral of question of law (1) The Authority may, where a question of law arises during an investigation,— (a) refer that question of law to the court for its opinion; and delay the investigation until it receives the court’s opin- ion on that question.

(b) (2) (3) (4) Every reference under subsection (1) must be made in the pre- scribed manner.
The court must provide the Authority with its opinion on the question of law and the Authority must then continue its in- vestigation in accordance with that opinion.

Subsection (1) does not apply— (a) to a question about the procedure that the Authority has followed, is following, or is intending to follow; and (b) without limiting paragraph (a), to a question about whether the Authority may follow or adopt a particular procedure.
Compare: 1991 No 22 s 93 Section 177(4): added, on 1 December 2004, by section 57 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

191 Part 10 s 178 Employment Relations Act 2000 Reprinted as at 1 July 2011 178 Removal to court (1) (2) The Authority may, on its own motion or on the application of a party to a matter, order the removal of the matter, or any part of it, to the court to hear and determine the matter without the Authority investigating it.
The Authority may order the removal of the matter, or any part of it, to the court if— (a) an important question of law is likely to arise in the matter other than incidentally; or the case is of such a nature and of such urgency that it is in the public interest that it be removed immediately to the court; or the court already has before it proceedings which are between the same parties and which involve the same or similar or related issues; or the Authority is of the opinion that in all the circum- stances the court should determine the matter.
(b) (c) (d) (3) Where the Authority declines to remove any matter on appli- cation under subsection (1), or a part of it, to the court, the party applying for the removal may seek the special leave of the court for an order of the court that the matter or part be re- moved to the court, and in any such case the court must apply the criteria set out in paragraphs (a) to (c) of subsection (2).
(4) An order for removal to the court under this section may be made subject to such conditions as the Authority or the court, as the case may be, thinks fit.

(5) Where the Authority, acting under subsection (2), orders the removal of any matter, or a part of it, to the court, the court may, if it considers that the matter or part was not properly so removed, order that the Authority investigate the matter.
This section does not apply— (a) to a matter, or part of a matter, about the procedure that the Authority has followed, is following, or is intending to follow; and (6) (b) without limiting paragraph (a), to a matter, or part of a matter, about whether the Authority may follow or adopt a particular procedure.
Compare: 1991 No 22 s 94 192 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 179 Section 178(1): substituted, on 1 April 2011, by section 34(1) of the Employ- ment Relations Amendment Act 2010 (2010 No 125).

Section 178(3): amended, on 1 April 2011, by section 34(2) of the Employment Relations Amendment Act 2010 (2010 No 125).

Section 178(6): added, on 1 December 2004, by section 58 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
178A Challenge in respect of dismissal of frivolous or vexatious proceedings (1) A party to a matter before the Authority that was dismissed be- cause the Authority determined it was frivolous or vexatious under clause 12A of Schedule 2 may challenge that determin- ation in the court.

(3) (2) A challenge under this section must be made in the prescribed manner within 28 days after the date that the matter is dis- missed by the Authority.
The court must determine whether it considers the matter to be frivolous or vexatious.

If the court does not determine that the matter is frivolous or vexatious, it must order the Authority to investigate and deter- mine the matter.

Section 178A: inserted, on 1 April 2011, by section 35 of the Employment Re- lations Amendment Act 2010 (2010 No 125).
(4) (2) 179 Challenges to determinations of Authority (1) A party to a matter before the Authority who is dissatisfied with the determination of the Authority or any part of that de- termination may elect to have the matter heard by the court.

Every election under this section must be made in the pre- scribed manner within 28 days after the date of the determin- ation of the Authority.
The election must— (a) (3) specify the determination, or the part of the determin- ation, to which the election relates; and state whether or not the party making the election is seeking a full hearing of the entire matter (in this Part referred to as a hearing de novo).
(b) 193 Part 10 s 179A Employment Relations Act 2000 Reprinted as at 1 July 2011 (4) (5) If the party making the election is not seeking a hearing de novo, the election must specify, in addition to the matters spe- cified in subsection (3),— (a) (b) (c) any error of law or fact alleged by that party; and any question of law or fact to be resolved; and the grounds on which the election is made, which grounds are to be specified with such reasonable par- ticularity as to give full advice to both the court and the other parties of the issues involved; and (d) the relief sought.
Subsection (1) does not apply— (a) to a determination, or part of a determination, about the procedure that the Authority has followed, is following, or is intending to follow; and (b) without limiting paragraph (a), to a determination, or part of a determination, about whether the Authority may follow or adopt a particular procedure.

Compare: 1991 No 22 s 95(1), (2) Section 179(5): added, on 1 December 2004, by section 59 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
179A Limitation on challenges to certain determinations of (1) Authority This section applies to a determination of the Authority made— (a) (b) for the purposes of sections 50A to 50I; or under section 50J.

(2) A party may not elect, under section 179(1), to have the matter heard by the court unless the matter is whether 1 or more of the grounds in section 50C(1) or section 50J(3) exist.
Section 179A: inserted, on 1 December 2004, by section 60 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

179B Limitations on consideration by Employment Court of matters arising under Part 6AA This section applies to an investigation by, or determination of, the Authority under Part 6AA.
(1) 194 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 181 (2) The Authority may not refer a question of law to the court under section 177 if the question of law arises during an in- vestigation of the Authority under Part 6AA.

(3) No matter, or part of a matter, may be removed to the court under section 178 if the matter, or the part of the matter, arises under Part 6AA.
(4) No party who is dissatisfied with a determination, or any part of a determination, of the Authority under Part 6AA may elect, under section 179, to have the matter heard by the court.

Section 179B: inserted, on 1 July 2008, by section 7 of the Employment Rela- tions (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105).
180 Election not to operate as stay The making of an election under section 179 does not operate as a stay of proceedings on the determination of the Authority unless the court, or the Authority, so orders.
181 Report in relation to good faith (1) Where the election states that the person making the election is seeking a hearing de novo, the Authority must, if the court so requests, as soon as practicable, submit to the court a written report giving the Authority’s assessment of the extent to which the parties involved in the investigation have— (a) facilitated rather than obstructed the Authority’s inves- tigation; and acted in good faith towards each other during the inves- tigation.
(b) (2) (3) The court may request a report under subsection (1) only where the court considers, on the basis of the determination made by the Authority under section 174, that any party may not have participated in the Authority’s investigation of the matter in a manner that was designed to resolve the issues involved.

The Authority must, before submitting the report to the court, give each party to the proceedings a reasonable opportunity to supply to the Authority written comments on the draft report.
195 Part 10 s 182 Employment Relations Act 2000 Reprinted as at 1 July 2011 (4) A party who supplies written comments to the Authority under subsection (3) must, immediately after doing so, serve a copy of those comments on each other party to the proceedings.

The Authority must, in submitting the final report to the court, submit with it any written comments received from any party.
(5) 182 Hearings (1) Where the election states that the person making the election is seeking a hearing de novo, the hearing held pursuant to that election is to be a hearing de novo unless the parties agree otherwise or the court otherwise directs.
The court may give a direction under subsection (1) only if— it has requested a report under section 181(1); and (a) it is satisfied,— (b) (i) (ii) on the basis of that report; and after having had regard to any comments submit- ted under section 181(5),— (2) that the person making the election did not participate in the Authority’s investigation of the matter in a manner that was designed to resolve the issues involved.
(3) Where— (a) (b) the court gives a direction under subsection (1); or the election states that the person seeking the election is not seeking a hearing de novo,— the court must direct, in relation to the issues involved in the matter, the nature and extent of the hearing.

183 Decision (1) Where a party to a matter has elected under section 179 to have that matter heard by the court, the court must make its own decision on that matter and any relevant issues.
(2) Once the court has made a decision, the determination of the Authority on the matter is set aside and the decision of the court on the matter stands in its place.

(3) Despite subsection (2), a person may apply for review of the determination of the Authority under section 194.

Compare: 1991 No 22 s 95(4)–(7) Section 183(2): added, on 1 December 2004, by section 61 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
196 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 185 Section 183(3): added, on 1 December 2004, by section 61 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
184 Restriction on review (1) Except on the ground of lack of jurisdiction or as provided in section 179, no determination, order, or proceedings of the Authority are removable to any court by way of certiorari or otherwise, or are liable to be challenged, appealed against, re- viewed, quashed, or called in question in any court.
(1A) No review proceedings under section 194 may be initiated in relation to any matter before the Authority unless— (a) the Authority has issued final determinations on all mat- ters relating to the subject of the review application be- tween the parties to the matter; and (if applicable) the party initiating the review proceed- ings has challenged the determination under section 179; and the court has made a decision on the challenge under section 183.
(b) (c) (2) For the purposes of subsection (1), the Authority suffers from lack of jurisdiction only where,— (a) in the narrow and original sense of the term jurisdiction, it has no entitlement to enter upon the inquiry in ques- tion; or the determination or order is outside the classes of de- terminations or orders which the Authority is authorised to make; or the Authority acts in bad faith.
(c) Section 184(1A): inserted, on 1 December 2004, by section 62 of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).

(b) 185 Staff of Authority (1) The chief executive may from time to time designate such number of employees of the department to act as officers of the Authority as may be required.

The officers designated under subsection (1) must act under the general direction of the chief executive.
The department is to provide such other employees as may be required to provide the Authority with such services and re- (2) (3) 197 Part 10 s 186 Employment Relations Act 2000 Reprinted as at 1 July 2011 (4) sources as may be necessary to enable it to effectively perform its functions and exercise its jurisdiction.

Subject to section 153(6), any employee designated under sub- section (1) or provided to the Authority under subsection (3) may also hold any other office or position in the department.
Compare: 1991 No 22 s 101 Employment Court 186 Employment Court (1) This section establishes a court of record, called the Employ- ment Court, which, in addition to the jurisdiction and powers specially conferred on it by this Act or any other Act, has all the powers inherent in a court of record.

The court established by subsection (1) is declared to be the same court as the Employment Court established by section 103 of the Employment Contracts Act 1991.
Compare: 1991 No 22 s 103 Jurisdiction of court The court has exclusive jurisdiction— (a) to hear and determine elections under section 179 for a hearing of a matter previously determined by the Au- thority, whether under this Act or any other Act confer- ring jurisdiction on the Authority: to hear and determine actions for the recovery of penal- ties under this Act for a breach of any provision of this Act (being a provision that provides for the penalty to be recovered in the court): to hear and determine questions of law referred to it by the Authority under section 177: to hear and determine applications for leave to have matters before the Authority removed into the court under section 178(3): to hear and determine matters removed into the court under section 178: to hear and determine, under section 6(5), any question whether any person is to be declared to be— (i) an employee within the meaning of this Act; or (b) (c) (d) (e) (f) (2) 187 (1) 198 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 188 (ii) a worker or employee within the meaning of any of the Acts referred to in section 223(1): to order compliance under section 139: to hear and determine proceedings founded on tort and resulting from or related to a strike or lockout: to hear and determine any application for an injunction of a type specified in section 100: to hear and determine any application for review of the type referred to in section 194: to issue warrants under section 231: to exercise its powers in respect of any offence against this Act: to exercise such other functions and powers as are con- ferred on it by this or any other Act.
(g) (h) (i) (j) (k) (l) (m) (2) (3) The court does not have jurisdiction to entertain an application for summary judgment.

Except as provided in this Act, no other court has jurisdiction in relation to any matter that, under subsection (1), is within the exclusive jurisdiction of the court.
Compare: 1991 No 22 s 104(1)(a), (c), (d), (e), (j), (l), (m), (n), (o) 188 Role in relation to jurisdiction (1) The general role of the court in relation to its jurisdiction is to hear and determine matters within its jurisdiction and to exercise its powers.
(2) Where any matter comes before the court for decision, the court— (a) must, whether through a Judge or through an officer of the court, first consider whether an attempt has been made to resolve the matter by the use of mediation; and (b) must direct that mediation or further mediation, as the case may require, be used before the court hears the mat- ter, unless the court considers that the use of mediation or further mediation— (i) will not contribute constructively to resolving the matter; or (ii) will not, in all the circumstances, be in the public interest; or 199 Part 10 s 189 Employment Relations Act 2000 Reprinted as at 1 July 2011 (iii) will undermine the urgent or interim nature of the proceedings; and (c) must, in the course of hearing and determining any mat- ter, consider from time to time, as the court thinks fit, whether to direct the parties to use mediation.
(3) Where the court gives a direction under subsection (2)(b) or (c), the parties must comply with the direction and attempt in good faith to reach an agreed settlement of their differences; and proceedings in relation to the request before the court are suspended until the parties have done so or the court otherwise directs (whichever first occurs).
It is not a function of the court to advise or direct the Authority in relation to— (a) (4) the exercise of its investigative role, powers, and juris- diction; or the procedure— (i) that it has followed, is following, or is intending to follow; or (b) (ii) without limiting subparagraph (i), that it may fol- low or adopt.

Section 188(4): substituted, on 1 December 2004, by section 63 of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).
189 Equity and good conscience (1) In all matters before it, the court has, for the purpose of sup- porting successful employment relationships and promoting good faith behaviour, jurisdiction to determine them in such manner and to make such decisions or orders, not inconsist- ent with this or any other Act or with any applicable collective agreement or the particular individual employment agreement, as in equity and good conscience it thinks fit.
The court may accept, admit, and call for such evidence and information as in equity and good conscience it thinks fit, whether strictly legal evidence or not.
Compare: 1991 No 22 ss 104(3), 126(1) (2) 190 Application of other provisions (1) The court has, in relation to matters within its jurisdiction, and in addition to the powers specifically conferred on it by this 200 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 192 (2) (3) (b) Act or any other Act, the powers conferred on the Authority by sections 162 and 164.
For the purposes of subsection (1), sections 162 and 164 apply, in relation to the court,— (a) as if, for the word “Authority”, there were substituted the word “court”; and as if, for the word “member”, there were substituted the word “Judge”; and with all other necessary modifications.

(c) In addition to the powers described in subsection (1), the court has the same powers of the High Court to make a freezing order and a search order as provided for in the High Court Rules.
Section 190(3): added, on 1 April 2011, by section 36 of the Employment Re- lations Amendment Act 2010 (2010 No 125).

191 Other provisions relating to proceedings of court The provisions of Schedule 3 have effect in relation to the court and matters within its jurisdiction.
192 Application to collective agreements of law relating to (1) contracts The court may not, under section 162 (as applied by section 190(1)), make in respect of a collective agreement an order cancelling or varying the agreement or any term of the agree- ment.
(2) Despite subsection (1), the court may, instead of making an order of the kind described in that subsection,— (a) make an order— (i) (ii) suspending some aspect of the agreement; and directing the parties to the collective agreement to reopen bargaining with regard to the sus- pended aspect of the agreement; and in addition to an order under paragraph (a), make an order requiring the parties to make use of mediation in the bargaining required by paragraph (a)(ii); and in addition to orders under paragraphs (a) and (b), make a declaration that the employees and employers covered by the collective agreement (or either of them) are, or (b) (c) 201 Part 10 s 193 Employment Relations Act 2000 Reprinted as at 1 July 2011 are not, to have the right to strike or lock out available to them, while the bargaining required by the order under paragraph (a)(ii) continues.
(3) Every declaration under subsection (2)(c) must state the date on which the right to strike or lock out is to become available or is to cease to be available.
Compare: 1991 No 22 s 104(2) (2) 193 Proceedings not to be questioned (1) Except on the ground of lack of jurisdiction or as provided in sections 213, 214, 217, and 218, no decision, order, or pro- ceedings of the court are removable to any court by certiorari or otherwise, or are liable to be challenged, appealed against, reviewed, quashed, or called in question in any court.
For the purposes of subsection (1), the court suffers from lack of jurisdiction only where,— (a) in the narrow and original sense of the term jurisdiction, it has no entitlement to enter upon the inquiry in ques- tion; or the decision or order is outside the classes of decisions or orders which the court is authorised to make; or the court acts in bad faith.
(b) (c) Compare: 1991 No 22 s 104(5), (6) 194 Application for review (1) If any person wishes to apply for review under Part 1 of the Ju- dicature Amendment Act 1972, or bring proceedings seeking a writ or order of, or in the nature of, mandamus, prohibition, or certiorari, or a declaration or injunction, in relation to the exercise, refusal to exercise, or proposed or purported exer- cise by— (a) (b) (c) (d) (e) (f) (g) (h) the Authority; or an officer of the Authority or the court; or an employer, or that employer’s representative; or a union, or that union’s representative; or the Registrar of Unions; or the Minister; or the chief executive; or any other person— 202 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 194A of a statutory power or statutory power of decision (as defined by section 3 of the Judicature Amendment Act 1972) conferred by or under this Act or any of the provisions of Parts 5, 6, 7, or 7A of the State Sector Act 1988, the provisions of subsections (2) to (4) of this section apply.
(2) Despite any other Act or rule of law, but subject to section 184(1A), the court has full and exclusive jurisdiction to hear and determine any application or proceedings of the type re- ferred to in subsection (1) and all such applications or proceed- ings must be made to or brought in the court.
(3) Where a right of appeal (which includes, for the purposes of this subsection, the right to make an election under section 179) is conferred on any person under this Act or the State Sector Act 1988 in respect of any matter, that person may not make an application under subsection (1) in respect of that matter unless any appeal brought by that person in the exercise of that right of appeal has first been determined.
(4) A Judge may at any time and after hearing such persons, if any, as the Judge thinks fit, give such directions prescribing the procedure to be followed in any particular case under this section as the Judge deems expedient having regard to the ex- igencies of the case and the interests of justice.

Compare: 1991 No 22 s 105 Section 194(2): amended, on 1 December 2004, by section 64 of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).
194A Application for review by certain employees (1) This section applies to any exercise, refusal to exercise, or pro- posed or purported exercise of a statutory power or statutory power of decision by an employer if that exercise, refusal to exercise, or proposed or purported exercise of the statutory power or statutory power of decision is or gives rise to an em- ployment relationship problem.
(2) When subsection (1) applies, the employee or former em- ployee concerned— (a) must use the employment relationship problem-solving provisions in this Act to deal with the problem; and (b) may not bring an application for review in relation to the problem in the court or the High Court.

203 Part 10 s 195 Employment Relations Act 2000 Reprinted as at 1 July 2011 Section 194A: inserted, on 1 December 2004, by section 65 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
195 Non-attendance or refusal to co-operate (1) Every person commits an offence, and is liable on conviction by the court to a fine not exceeding $5,000, who, after being summoned under this Act as a witness,— (a) refuses or neglects, without sufficient cause, to attend as a witness before the Authority or the court or to pro- duce to the Authority or the court any books, papers, documents, records, or things required by the summons to be produced; or refuses, without sufficient cause, to be sworn or to give evidence or, having been sworn, refuses to answer any question that the person is lawfully required by the Au- thority or the court to answer concerning the proceed- ings.
(b) (2) No person summoned under this Act as a witness is liable to a fine under this Act unless there has been paid or tendered to that person in accordance with clause 6 of Schedule 2 the amount fixed under subclause (3) of that clause or in accord- ance with clause 7 of Schedule 3 the amount fixed under sub- clause (3) of that clause.
Compare: 1991 No 22 s 127 196 Contempt of court or Authority (1) This section applies where any person— (a) assaults, threatens, intimidates, or wilfully insults any person, being a member of the Authority, a Judge, an officer of the Authority, a Registrar of the court, any other officer of the court, or any witness, during that person’s sitting or attendance in the Authority or the court, or in going to or returning from the Authority or the court; or (b) wilfully interrupts or obstructs the proceedings of the Authority or the court or otherwise misbehaves in the Authority or the court; or 204 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 198 (c) wilfully and without lawful excuse disobeys any order or direction of the Authority or the court in the course of the hearing of any proceedings.
(2) Where this section applies,— (a) (b) any constable, with or without the assistance of any other person, may, by order of the Authority or the court, take the offender into custody, and detain the offender until the rising of the Authority or the court: a Judge, if the Judge thinks fit, may sentence the of- fender to imprisonment for any period not exceeding 3 months, or sentence the offender to pay a fine not ex- ceeding $5,000 for every such offence; and, in default of payment of any such fine, may direct that the offender be imprisoned for any period not exceeding 3 months, unless the fine is sooner paid.
Compare: 1991 No 22 s 107 Section 196(2)(a): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

197 Constitution of court The court consists of— (a) 1 Judge called the Chief Judge of the Employment Court: at least 2 other Judges who are to be called Judges of the Employment Court.
(b) Compare: 1991 No 22 s 110 198 Registrar and officers of court (1) The chief executive may from time to time designate such number of employees of the department to act as Registrars of the court as may be required, and appoint such other offi- cers of the court as may be required.

Subject to section 153(6), an employee designated under sub- section (1) may also hold any other office or position in the Authority or the department.
Compare: 1991 No 22 s 111 (2) 205 Part 10 s 199 Employment Relations Act 2000 Reprinted as at 1 July 2011 199 Seal of court The court is to have a seal, which is to be judicially noticed by all courts and for all purposes.

Compare: 1991 No 22 s 112 Judges of the court 200 Appointment of Judges (1) The Judges of the court are to be appointed by the Governor- General on the advice of the Attorney-General.
(2) No person may be appointed a Judge of the court unless that person has held a practising certificate as a barrister or solicitor for at least 7 years.

The jurisdiction of the court is not affected by any vacancy in the number of Judges of the court.

(3) (4) A Judge of the court must not undertake any other paid em- ployment or hold any other office (whether paid or not) unless the Chief Judge is satisfied that the employment or other office is compatible with judicial office.
Compare: 1991 No 22 s 113(1), (2), (8) Section 200(4): added, on 20 May 2004, by section 3 of the Employment Re- lations Amendment Act 2004 (2004 No 43).

200A Judges act on full-time basis but may be authorised to act part-time (2) (1) A person acts as a Judge of the court on a full-time basis unless he or she is authorised by the Attorney-General to act on a part-time basis.
The Attorney-General may, in accordance with subsection (4), authorise a Judge appointed under section 200 to act on a part- time basis for any specified period.

To avoid doubt, an authorisation under subsection (2) may take effect as from a Judge’s appointment or at any other time, and may be given more than once in respect of the same Judge.

The Attorney-General may authorise a Judge to act on a part- time basis only— (a) on the request of the Judge; and (b) with the concurrence of the Chief Judge.
(3) (4) 206 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 202 (7) (5) In considering whether to concur under subsection (4), the Chief Judge must have regard to the ability of the court to dis- charge its obligations in an orderly and expeditious way.

(6) A Judge who is authorised to act on a part-time basis must resume acting on a full-time basis at the end of the authorised part-time period.
The basis on which a Judge acts must not be altered during the term of the Judge’s appointment without the Judge’s consent, but consent under this subsection is not necessary if the alter- ation is required by subsection (6).

If any question arises as to the number of Judges of the court,— a Judge who is acting on a full-time basis counts as 1: (a) a Judge who is acting on a part-time basis counts as an (b) appropriate fraction of 1.
(8) Section 200A: inserted, on 20 May 2004, by section 4 of the Employment Re- lations Amendment Act 2004 (2004 No 43).

201 Seniority (1) Subject to subsections (2) and (3), the Judges of the court other than the Chief Judge have seniority among themselves accord- ing to the dates of their appointments as Judges of the court.
If 2 or more of them are both appointed on the same day, they have seniority according to the precedence assigned to them by the Governor-General or, failing any such assignment, ac- cording to the order in which they take the judicial oath.

Every permanent Judge has seniority over every temporary Judge.
Compare: 1991 No 22 s 113(7) (2) (3) 202 Senior Judge to act as Chief Judge in certain circumstances (1) While any vacancy exists in the office of Chief Judge, or dur- ing any absence from New Zealand of the Chief Judge, the se- nior Judge of the court in New Zealand has authority to act as Chief Judge and to execute the duties of that office and to ex- ercise all powers that may be lawfully exercised by the Chief Judge.
207 Part 10 s 203 Employment Relations Act 2000 Reprinted as at 1 July 2011 (2) Whenever by reason of illness or any cause other than absence from New Zealand the Chief Judge is prevented from exercis- ing the duties of the office, the Governor-General may author- ise the senior Judge of the court to act as Chief Judge until the Chief Judge resumes those duties, and during that period to execute the duties of that office and to exercise all powers that may be lawfully exercised by the Chief Judge.
Compare: 1991 No 22 s 114 203 Judges to have immunities of High Court Judges The Judges have all the immunities of a Judge of the High Court.

204 Protection of Judges against removal from office (1) A Judge of the court may not be removed from office except by the Sovereign or the Governor-General, acting upon the address of the House of Representatives.
(2) An address under subsection (1) may be moved only on the grounds of— (a) (b) the Judge’s misbehaviour; or the Judge’s incapacity to discharge the functions of the Judge’s office.

Compare: 1986 No 114 s 23; 1991 No 22 s 113(3), (4) 205 Age of retirement Every Judge of the court must retire from office on attaining the age of 70 years.

Compare: 1991 No 22 s 113(6) Section 205: amended, on 6 March 2007, by section 4 of the Employment Re- lations Amendment Act 2007 (2007 No 2).
206 Salaries and allowances of Judges (1) There is to be paid to each Judge of the court, out of public money, without further appropriation than this section,— (a) a salary at such rate as the Remuneration Authority from time to time determines; and such allowances as are from time to time determined by the Remuneration Authority; and (b) 208 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 207 (c) such additional allowances, being travelling allowances or other incidental or minor allowances, as may be de- termined from time to time by the Governor-General.
In the case of the Chief Judge, the rate of salary and the al- lowances determined may be higher than those for the other Judges.

The salary of a Judge is not to be reduced while the Judge holds office.

(2) (3) (3A) The salary and allowances payable for a period during which a Judge acts on a part-time basis must be calculated and paid as a pro rata proportion of the salary and allowances for a full-time equivalent position.
(3B) For the purpose of subsection (3), the payment of salary and allowances on a pro rata basis under subsection (3A) is not a reduction of salary.
(4) Any determination made under subsection (1)(c), and any pro- vision of any such determination, may be made so as to come into force on a date specified in the determination, being the date of the making of the determination or any other date, whether before or after the date of the making of the deter- mination or the date of the commencement of this section.
Every determination made under subsection (1)(c), and every provision of any such determination, in respect of which no date is specified under subsection (4) comes into force on the date of the making of the determination.

Compare: 1991 No 22 s 115 (5) Section 206(1)(a): amended, on 1 April 2003, by section 4(1) of the Remuner- ation Authority (Members of Parliament) Amendment Act 2002 (2002 No 54).
Section 206(1)(b): amended, on 1 April 2003, by section 4(1) of the Remuner- ation Authority (Members of Parliament) Amendment Act 2002 (2002 No 54).

Section 206(3A): inserted, on 20 May 2004, by section 5 of the Employment Relations Amendment Act 2004 (2004 No 43).

Section 206(3B): inserted, on 20 May 2004, by section 5 of the Employment Relations Amendment Act 2004 (2004 No 43).
207 Appointment of temporary Judges (1) The Governor-General may from time to time, whenever in the Governor-General’s opinion it is necessary or expedient to make a temporary appointment, appoint 1 or more temporary 209 Part 10 s 208 Employment Relations Act 2000 Reprinted as at 1 July 2011 (2) (3) Judges of the court to hold office for such period as is specified in the warrant of appointment.
The period so specified may not exceed 2 years or, in the case of a person who has attained the age of 70 years, 12 months; but any person appointed under this section may from time to time be reappointed.

Except as provided in subsection (4), no person may be ap- pointed as a Judge under this section unless that person is eli- gible for appointment as a Judge under section 200.
(4) A person otherwise qualified who has attained the age of 70 years (including a Judge who has retired after attaining that age) may, subject to subsection (2), be appointed as a Judge under this section.

The power conferred by this section may be exercised at any time, even though there may be 1 or more persons holding the office of Judge, whether under section 200 or this section.
Every Judge appointed under this section is to be paid— (a) (5) (6) such salary, not exceeding the salary payable for the time being to Judges other than the Chief Judge, as the Governor-General in Council directs; and the allowances to which the Judge would be entitled if the Judge were appointed under section 200.

(b) (7) Nothing in the Remuneration Authority Act 1977 limits the provisions of subsection (6).
Compare: 1991 No 22 s 116 Section 207(2): amended, on 6 March 2007, by section 5(1) of the Employment Relations Amendment Act 2007 (2007 No 2).

Section 207(4): amended, on 6 March 2007, by section 5(2) of the Employment Relations Amendment Act 2007 (2007 No 2).

Section 207(7): amended, on 1 April 2003, by section 4(1) of the Remuneration Authority (Members of Parliament) Amendment Act 2002 (2002 No 54).
208 Sittings (1) Subject to section 209, the jurisdiction of the court is to be exercised by a Judge sitting alone.

Sittings of the court are to be held at such times and places as are from time to time fixed by the court.

Sittings may be fixed either for a particular case or generally for a class of cases then before the court and ripe for hearing.
(2) (3) 210 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 211 (4) The court may be adjourned from time to time and from place to place by the Judge or by the Registrar of the court, whether at any sitting or at any time before the time fixed for the sitting.

Compare: 1991 No 22 s 117 209 Full court (1) (2) The Chief Judge may direct that the court must sit as a full court to hear and determine any proceedings, case, or question.
The full court comprises,— (a) as presiding member, the Chief Judge or a Judge nom- inated by the Chief Judge: at least 2 other Judges nominated by the Chief Judge.
(b) Compare: 1991 No 22 s 119 210 Quorum and decision of court (1) Where, in relation to any proceedings, case, or question, the court consists of more than 1 Judge, the presence of at least 2 Judges is necessary to constitute a sitting of the court for the purposes of those proceedings, or that case or question, except as otherwise expressly provided.

The decision of a majority of the Judges present at the sitting of the court is the decision of the court.
(2) (3) Where the Judges present at a sitting of the court are equally divided in opinion, the decision of the court, for the purposes of subsection (2), is the decision of the Chief Judge if the Chief Judge is present or, if the Chief Judge is not present, the deci- sion of the most senior of the Judges present.

The decision of the court in every case must be signed by a Judge, and may be issued by a Judge or by the Registrar of the court.
Compare: 1991 No 22 s 120 (4) 211 Statement of case for Court of Appeal In any matter before the court the Judge may, of the Judge’s own motion, or on the application of any party, state a case for the Court of Appeal on any question of law arising in the 211 Part 10 s 212 Employment Relations Act 2000 Reprinted as at 1 July 2011 matter, excluding any question as to the construction of any employment agreement.
Compare: 1991 No 22 s 122 212 Court may make rules (1) (2) The court may from time to time make rules (not inconsistent with this Act or with any regulations made under this Act) for the purpose of regulating the practice and procedure of the court and the proceedings of parties.
To the extent that the court does not make rules under sub- section (1) regulating the practice and procedure of the court under— (a) (b) section 99 (jurisdiction of court in relation to torts); and section 100 (jurisdiction of court in relation to injunc- tions); and section 194 (application for review),— (c) proceedings in the court under those sections are to be regu- lated by the rules applicable to proceedings founded on tort, injunctions, and judicial review in the High Court, as far as they are applicable and with all necessary modifications.
Compare: 1991 No 22 s 130 Review of proceedings 213 Review of proceedings before court (1) If, in relation to any proceedings before the court, any person wishes to apply for a review under Part 1 of the Judicature Amendment Act 1972 or bring proceedings seeking a writ or order of, or in the nature of, mandamus, prohibition, or certi- orari, or a declaration or an injunction, the provisions of sub- sections (2) to (4) apply.
(2) Despite anything in any other Act or rule of law, the applica- tion or proceedings referred to in subsection (1) must be made to or brought in the Court of Appeal.
The Court of Appeal or a Judge of that court may at any time and after hearing such persons, if any, as it or the Judge thinks fit, give such directions prescribing the procedure to be fol- lowed in any particular case under this section as it or the Judge (3) 212 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 214 (4) considers expedient having regard to the exigencies of the case and the interests of justice and the object of this Act.
The decision of the Court of Appeal on any such matter is final and conclusive, and there is no right of review of or appeal against the court’s decision.
Compare: 1991 No 22 s 131 Appeals 214 Appeals on question of law (1) A party to a proceeding under this Act who is dissatisfied with a decision of the court (other than a decision on the construc- tion of an individual employment agreement or a collective employment agreement) as being wrong in law may, with the leave of the Court of Appeal, appeal to the Court of Appeal against the decision; and section 66 of the Judicature Act 1908 applies to any such appeal.
(3) (2) A party desiring to appeal to the Court of Appeal under this section against a decision of the Employment Court must, within 28 days after the date of the issue of the decision or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by rules of court, for leave to appeal to that court.
The Court of Appeal may grant leave accordingly if, in the opinion of that court, the question of law involved in that ap- peal is one that, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

The Court of Appeal, in granting leave under this section, may, in its discretion, impose such conditions as it thinks fit, whether as to costs or otherwise.
In its determination of an appeal, the Court of Appeal may confirm, modify, or reverse the decision appealed against or any part of that decision.

(5) (4) (6) Neither an application for leave to appeal nor an appeal op- erates as a stay of proceedings on the decision to which the application or the appeal relates unless the court or the Court of Appeal so orders.
213 Part 10 s 214A Employment Relations Act 2000 Reprinted as at 1 July 2011 (7) [Repealed] Compare: 1991 No 22 s 135 Section 214 heading: amended, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).

Section 214(1): substituted, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).

Section 214(7): repealed, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).
214A Appeals to Supreme Court on question of law in exceptional circumstances (1) A party to a proceeding under this Act who is dissatisfied with a decision of the court (other than a decision on the con- struction of an individual employment agreement or a collect- ive employment agreement) as being wrong in law may, with the leave of the Supreme Court, appeal to the Supreme Court against the decision.
In its determination of the appeal, the Supreme Court may con- firm, modify, or reverse the decision appealed against or any part of that decision.

(2) (4) (3) Neither an application for leave to appeal nor an appeal oper- ates as a stay of proceedings on the decision to which the ap- plication or the appeal relates unless the court or the Supreme Court so orders.
This section is subject to section 14 of the Supreme Court Act 2003 (which provides that the Supreme Court must not give leave to appeal directly to it against a decision made in a court other than the Court of Appeal unless it is satisfied that there are exceptional circumstances that justify taking the proposed appeal directly to the Supreme Court).

Section 214A: inserted, on 1 January 2004, by section 48(1) of the Supreme Court Act 2003 (2003 No 53).
215 Court of Appeal may refer appeals back for reconsideration (1) Despite anything in section 214, the Court of Appeal may in any case, instead of determining an appeal under that section, direct the court to reconsider, either generally or in respect of 214 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 10 s 217 (2) (3) any specified matters, the whole or any specified part of the matter to which the appeal relates.
In giving a direction under this section, the Court of Appeal must— (a) (b) advise the court of its reasons for so doing; and give the court such directions as it thinks just as to the rehearing or reconsideration or otherwise of the whole or any part of the matter that is referred back for recon- sideration.

In reconsidering the matter, the court must have regard to— (a) the Court of Appeal’s reasons for giving a direction under subsection (1); and the Court of Appeal’s directions under subsection (2)(b).
(b) Compare: 1991 No 22 s 136 Special provision in respect of appeals 216 Obligation to have regard to special jurisdiction of court In determining an appeal under section 214 or section 218, the Court of Appeal must have regard to— (a) (b) the special jurisdiction and powers of the court; and the object of this Act and the objects of the relevant Parts of this Act; and in particular, the provisions of sections 189, 190, 193, 219, and 221.
(c) Compare: 1991 No 22 s 137 Other appeals 217 Appeal to Court of Appeal against conviction or order or sentence in respect of contempt of court Any person who has been convicted of an offence against this Act, and any person against whom an order (other than an order to the effect only that a person be taken into custody until the rising of the court) has been made under section 140(6) or section 196 of this Act or section 11A(7) of the Minimum Wage Act 1983, may appeal to the Court of Appeal against 215 Part 10 s 218 Employment Relations Act 2000 Reprinted as at 1 July 2011 the order as if that person were a defendant who had been convicted on an information and sentenced by the High Court.
Compare: 1991 No 22 s 133 218 Appeal to Court of Appeal in respect of order on application for review Any party to an application for review or other proceeding under section 194 who is dissatisfied with any final or inter- locutory order in respect of the application may appeal to the Court of Appeal; and section 66 of the Judicature Act 1908 applies to any such appeal.
Compare: 1991 No 22 s 134 Miscellaneous provisions 219 Validation of informal proceedings, etc (1) If anything which is required or authorised to be done by this Act is not done within the time allowed, or is done informally, the court, or the Authority, as the case may be, may in its discretion, on the application of any person interested, make an order extending the time within which the thing may be done, or validating the thing so informally done.
(2) Nothing in this section authorises the court to make any such order in respect of judicial proceedings then already instituted in any court other than the court.
Compare: 1991 No 22 s 138 220 Documents under seal and certain signatures to be judicially noticed Every document bearing the seal of the Authority or the court is to be received in evidence without further proof, and the signature of a member of the Authority, or of a Judge, or of the Registrar of the court, or of an officer of the Authority is to be judicially noticed in or before any court or before any person or officer acting judicially or under any power or authority conferred by this Act, if the signature is attached to some order, certificate, or other official document made or purporting to be made under this Act or under any Act or provision of an Act repealed by this Act.
(1) 216 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 11 s 223 (2) No proof is required of the handwriting or official position of any person acting under this section.
Compare: 1991 No 22 s 139 221 Joinder, waiver, and extension of time In order to enable the court or the Authority, as the case may be, to more effectually dispose of any matter before it accord- ing to the substantial merits and equities of the case, it may, at any stage of the proceedings, of its own motion or on the ap- plication of any of the parties, and upon such terms as it thinks fit, by order,— (a) (b) direct parties to be joined or struck out; and amend or waive any error or defect in the proceedings; and subject to section 114(4), extend the time within which anything is to or may be done; and generally give such directions as are necessary or expe- dient in the circumstances.
(c) (d) Compare: 1991 No 22 s 140 222 Application of Official Information Act 1982 Nothing in the Official Information Act 1982 applies to any in- formation held by the department or the Authority or the court in relation to any proceedings brought before the Authority or the court.
Compare: 1991 No 22 s 102(b) Part 11 General provisions Labour Inspectors 223 Labour Inspectors (1) The chief executive may designate as Labour Inspectors such employees of the department as the chief executive from time to time considers necessary for the purposes of— (a) (b) (c) (d) this Act; and the Equal Pay Act 1972; and the Holidays Act 2003; and the Minimum Wage Act 1983; and 217 Part 11 s 223A Employment Relations Act 2000 Reprinted as at 1 July 2011 (2) (da) the Parental Leave and Employment Protection Act 1987; and the Volunteers Employment Protection Act 1973; and the Wages Protection Act 1983.
(e) (f) Every Labour Inspector is to have a warrant of designation signed by the chief executive and must produce it for in- spection if requested to do so in the course of the Labour Inspector’s duties.

Compare: 1991 No 22 s 143 Section 223(1)(c): substituted, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).

Section 223(1)(da): inserted, on 1 July 2002, by section 6 of the Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 (2002 No 7).
223A Functions of Labour Inspector The functions of a Labour Inspector include— (a) (b) (c) (d) (e) determining whether the provisions of the relevant Acts have been complied with; and taking all reasonable steps to ensure that the relevant Acts are complied with; and supporting employers, employees, and other persons in complying with the relevant Acts by providing informa- tion and education; and preventing non-compliance with the relevant Acts by assisting employers to implement systems and practices that comply with the provisions of the relevant Acts; and providing any other services that assist employers and employees to resolve, promptly and effectively, em- ployment relationship problems arising under the rele- vant Acts.
Section 223A: inserted, on 1 April 2011, by section 37 of the Employment Re- lations Amendment Act 2010 (2010 No 125).

218 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 11 s 223C Enforceable undertakings Heading: inserted, on 1 April 2011, by section 37 of the Employment Relations Amendment Act 2010 (2010 No 125).
223B Enforceable undertakings (1) A Labour Inspector and an employer may agree in writing that the employer will undertake by a specified date (an enforce- able undertaking) to— (a) rectify the breach of any provision of the relevant Acts; or pay money owed to an employee under a provision of the relevant Acts; or take any other action that the Labour Inspector deter- mines is appropriate having regard to the nature of the breach of the provision of the relevant Act.
(b) (c) (2) The employer may withdraw or vary an enforceable undertak- ing agreed under subsection (1) at any time, but only with the consent of the Labour Inspector.

Section 223B: inserted, on 1 April 2011, by section 37 of the Employment Re- lations Amendment Act 2010 (2010 No 125).

223C Enforcement of undertakings (1) An enforceable undertaking may be enforced by the Authority making a compliance order under section 137.
(3) (2) An employer who fails to comply with an enforceable under- taking that remains in force is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority.

If the enforceable undertaking relates to a monetary settle- ment, the enforceable undertaking may be enforced by using, as if the undertaking were an order enforceable under section 141, the procedure applicable under section 141.
Section 223C: inserted, on 1 April 2011, by section 37 of the Employment Re- lations Amendment Act 2010 (2010 No 125).

219 Part 11 s 223D Employment Relations Act 2000 Reprinted as at 1 July 2011 Improvement notices Heading: inserted, on 1 April 2011, by section 37 of the Employment Relations Amendment Act 2010 (2010 No 125).
223D Labour Inspector may issue improvement notice (1) A Labour Inspector who believes on reasonable grounds that any employer is failing, or has failed, to comply with any pro- vision of the relevant Acts may issue the employer with an improvement notice that requires the employer to comply with the provision.
(2) An improvement notice issued under subsection (1) must state— (a) (b) (c) (d) (e) the provision that the Labour Inspector reasonably be- lieves that the employer is failing, or has failed, to com- ply with; and the Labour Inspector’s reasons for believing that the employer is failing, or has failed, to comply with the provision; and the nature and extent of the employer’s failure to com- ply with the provision; and the steps that the employer could take to comply with the provision; and the date before which the employer must comply with the provision.
(3) An improvement notice may state the nature and extent of any loss suffered by any employee as a result of the employer’s failure to comply with the provision (if applicable).

(4) An improvement notice may be issued— (a) (b) by giving it to the employer concerned; or if the employer does not accept the improvement notice, by leaving it in the employer’s presence and drawing the employer’s attention to it.
(5) An improvement notice may not be issued in the period com- mencing on 17 December and ending with the close of 8 Janu- ary in the following year.

(6) An improvement notice may be enforced by the making by the Authority of a compliance order under section 137.

Section 223D: inserted, on 1 April 2011, by section 37 of the Employment Re- lations Amendment Act 2010 (2010 No 125).
220 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 11 s 223G 223E Objection to improvement notice (1) An employer may, within 28 days after the improvement no- tice is issued to the employer, lodge with the Authority an ob- jection to the notice.
The function of the Authority in respect of an objection is to determine— (a) (2) whether the employer is failing, or has failed, to comply with the specified provision of the relevant Acts; and the nature and extent of the employer’s failure to com- ply with the provision; and the nature and extent of any loss suffered by any em- ployee as a result of the employer’s failure to comply with the provision (if applicable).
(b) (c) (3) The Authority may confirm, vary, or rescind the improvement notice as the Authority thinks fit.

Section 223E: inserted, on 1 April 2011, by section 37 of the Employment Re- lations Amendment Act 2010 (2010 No 125).

223F Penalty (1) An employer who fails to comply with an improvement notice issued under section 223D is liable, in an action brought by a Labour Inspector, to a penalty imposed by the Authority.
If subsection (1) applies, a Labour Inspector may not also bring an action seeking a penalty in respect of the same matter under any of the relevant Acts.

Section 223F: inserted, on 1 April 2011, by section 37 of the Employment Re- lations Amendment Act 2010 (2010 No 125).
(2) 223G Withdrawal of improvement notice An improvement notice may be withdrawn at any time by a Labour Inspector, but the withdrawal of an improvement no- tice does not prevent another improvement notice being served in relation to the same matter.

Section 223G: inserted, on 1 April 2011, by section 37 of the Employment Re- lations Amendment Act 2010 (2010 No 125).
221 Part 11 s 224 Employment Relations Act 2000 Reprinted as at 1 July 2011 Demand notices 224 Demand notice (1) A Labour Inspector (or a person authorised by a Labour In- spector to do so) may serve on an employer a demand notice, in the prescribed form, if— (a) an employee makes a complaint to the Labour Inspector, or the Labour Inspector believes on reasonable grounds, that an employee has not received wages or holiday pay or other money payable by the employer to the employee under the Minimum Wage Act 1983 or the Holidays Act 2003; and the Labour Inspector has given the employer not less than 7 days to comment on the complaint or the grounds for the Labour Inspector’s belief; and the Labour Inspector, after considering any comments made by the employer under paragraph (b), is satisfied that the employee is entitled to the wages or holiday pay or other money; and the Labour Inspector is satisfied that the employer is not willing to pay the wages or holiday pay or other money to the employee in a reasonable manner or within a rea- sonable time.
(b) (c) (d) (2) A demand notice must be served— (a) (b) by giving it to the employer concerned; or if the employer does not accept the demand notice, by leaving it in the employer’s presence and drawing the employer’s attention to it.

(3) A demand notice may not be served in the period commencing on 17 December and ending with the close of 8 January in the following year.
(4) A demand notice has no effect to the extent, if any, that it claims money (being wages or holiday pay or other money) that was payable more than 6 years earlier than the date on which the demand notice is served on the employer concerned.

Section 224(1)(a): amended, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).
222 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 11 s 226 225 Objections to demand notice (1) An employer may lodge with the Authority an objection to a demand notice.

(2) An objection must be lodged by an employer with the Author- ity within 28 days after the demand notice is served on the employer.
(3) A demand notice has the consequences specified in subsection (4) (4)— (a) (b) if no objection is lodged before the close of the period specified in subsection (2); or if any objection lodged before the close of the period specified in subsection (2) is withdrawn (whether before or after the close of that period).
The consequences are that the demand notice— (a) imposes a legal requirement on the employer to comply with it; and is prima facie evidence before the court or the Author- ity or (for the purposes of paragraph (d), before a Dis- trict Court) that the employer owes to the employee the wages or holiday pay or other money specified in the notice; and (b) (c) may be enforced by the making by the Authority of a (d) compliance order under section 137; and is enforceable as a judgment debt under section 141 (which applies with any necessary modifications).
226 Authority to determine objection (1) The function of the Authority in respect of an objection is to determine whether or not the whole or part of the wages or holiday pay or other money specified in the notice is due to the employee by the employer and, if so, the amount payable.

(2) A determination by the Authority that any wages or holiday pay or other money is due is enforceable as a judgment debt under section 141 (which applies with any necessary modifi- cations).
223 Part 11 s 227 Employment Relations Act 2000 Reprinted as at 1 July 2011 227 Withdrawal of demand notice A demand notice may be withdrawn at any time by a Labour Inspector, but the withdrawal of a demand notice does not pre- vent another demand notice being served in relation to the same matter.
Actions to recover wages or holiday pay, etc (2) 228 Actions by Labour Inspector (1) A Labour Inspector may commence an action in the name and on behalf of an employee to recover any wages or holiday pay or other money payable by an employer to that employee under the Minimum Wage Act 1983 or the Holidays Act 2003.
If a Labour Inspector commences an action under subsection (1), the Labour Inspector must not issue an improvement no- tice under section 223D or serve a demand notice under sec- tion 224 in respect of the same wages or holiday pay or other money.

Sections 131 and 132 apply, with the necessary modifications, to actions commenced under subsection (1).

Section 228(1): amended, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).
(3) Section 228(2): substituted, on 1 April 2011, by section 38 of the Employment Relations Amendment Act 2010 (2010 No 125).
Powers 229 Powers of Labour Inspectors (1) For the purpose of performing his or her functions and du- ties under any Act specified in section 223(1), every Labour Inspector has, subject to sections 230 to 233, the following powers: (a) the power to enter, at any reasonable hour, any premises where any person is employed or where the Labour In- spector has reasonable cause to believe that any per- son is employed, accompanied, if the Labour Inspector thinks fit, by any other employee of the department qualified to assist or by a constable: 224 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 11 s 229 (b) (c) (d) (e) (f) the power to interview any person at any premises of the kind described in paragraph (a) and the power to interview any employer or any employee: the power to require the production of, and to inspect and take copies from,— (i) any wages and time record or any holiday and leave record whether kept under this Act or any other Act: any other document held which records the re- muneration of any employees: (ii) the power to require any employer to supply to the Labour Inspector a copy of the wages and time record or holiday and leave record or employment agreement or both of any employee of that employer: the power to inspect, and take copies of, any record kept under section 98 of strikes and lockouts: the power to question any employer about compliance with any of the Acts referred to in section 223(1).
(3) (2) Where any Labour Inspector makes any requirement of an em- ployer under subsection (1)(c) or subsection (1)(d), that em- ployer must forthwith comply with that requirement.

Every employer who, without reasonable cause, fails to com- ply with any requirement made of that employer under subsec- tion (1)(c) or subsection (1)(d) is liable, in an action brought by a Labour Inspector, to a penalty under this Act imposed by the Authority.
(4) Where a Labour Inspector alleges that any person has not ob- served or not complied with any provision of section 130(1) or of subsection (2) of this section or of any of the Acts referred to in section 223(1), that Labour Inspector may commence pro- ceedings against that other person in respect of the non-obser- vance or non-compliance by applying to the Authority under section 137 for an order of the kind described in subsection (1) of that section, and the provisions of that section apply ac- cordingly with all necessary modifications.
(5) No person is, on examination or inquiry under this section, required to give to any question any answer tending to incrim- inate that person.

225 Part 11 s 230 Employment Relations Act 2000 Reprinted as at 1 July 2011 (6) Despite subsection (1), the power of a Labour Inspector to enter any defence area within the meaning of the Defence Act 1990 is subject to any regulations made under section 93 of that Act.
(7) A Labour Inspector may recover a penalty under this Act in the Authority for a breach of any provision that provides for the imposition of a penalty and is a provision of any of the Acts referred to in section 223(1).

Compare: 1991 No 22 s 144 Section 229(1)(a): amended, on 1 October 2008, pursuant to section 116(a)(ii) of the Policing Act 2008 (2008 No 72).

Section 229(1)(c)(i): amended, on 1 April 2004, by section 91(2) of the Holi- days Act 2003 (2003 No 129).
Section 229(1)(d): amended, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).

Section 229(3): amended, on 1 December 2004, by section 66 of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).

230 Entry of dwellinghouses No Labour Inspector may, under section 229, enter in or be on any dwellinghouse unless he or she either— (a) (b) has the consent of an occupier of that dwellinghouse; or is authorised to do so by a warrant issued under section 231.
Compare: 1992 No 96 s 31(2) 231 Entry warrant A Judge who, on application made on oath, is satisfied that there is reasonable ground for believing that a dwelling- house— (a) (b) is a place in which any person is employed; or is the only practicable means through which a place in which any person is employed may be entered,— may issue a warrant authorising a Labour Inspector named in it to enter that dwellinghouse or any part of that dwellinghouse that is, or is the only practicable means through which the In- spector may enter, a place where any person is employed.
Compare: 1992 No 96 s 31(3) 226 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 11 s 233 232 Compilation of wages and time record (1) Where an employer fails to produce, in response to a require- ment under section 229(1)(c)(i), a wages and time record or, in response to a requirement under section 229(1)(d), a copy of a wages and time record, a Labour Inspector may, by written notice given to that employer, require that employer— to compile a wages and time record; and (a) to deliver a written copy of the record compiled under (b) paragraph (a) to the Labour Inspector.
(2) (3) (4) (5) The notice must specify— (a) (b) the employee in respect of which, and the period in rela- tion to which, the wages and time record must be com- piled; and the date by which the wages and time record must be both compiled and delivered to the Labour Inspector (which date must be at least 30 days after the date of the notice).
If an employer fails to comply with a notice under subsection (1), written evidence of the contents of the employer’s wages and time record, in relation to the period specified in the notice, may not, in any proceedings under this Act, be produced by the employer without the consent of the other party or parties or the leave of the Authority.
Every employer who, without reasonable cause, fails to com- ply with a notice given to that employer under subsection (1) is liable, in an action brought by a Labour Inspector, to a penalty under this Act imposed by the Authority.

In this section, a wages and time record, if applicable, includes a holiday and leave record kept under section 81 of the Holi- days Act 2003.

Section 232(4): amended, on 1 December 2004, by section 67 of the Employ- ment Relations Amendment Act (No 2) 2004 (2004 No 86).
Section 232(5): added, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).
233 Obligations of Labour Inspectors (1) In entering any premises under the authority of section 229(1)(a) or under the authority of a warrant issued under section 231, a Labour Inspector is bound by any existing 227 Part 11 s 234 Employment Relations Act 2000 Reprinted as at 1 July 2011 (2) reasonable safety and health procedures and requirements applying at the premises and, to the extent that such proced- ures or requirements reasonably limit or prohibit the entry of persons other than employees to particular parts of the premises, may not enter such parts.
Every Labour Inspector who enters any premises under the au- thority of section 229(1)(a) or under the authority of a warrant issued under section 231 must, on first entering those premises, and, if requested, at any subsequent time, produce to the em- ployer or a representative of the employer that person’s war- rant under section 223(2) or the warrant issued under section 231, as the case may require.
(4) (3) Where a Labour Inspector enters any premises under the au- thority of section 229(1)(a) or under the authority of a warrant issued under section 231 and is unable, despite reasonable ef- forts, to find at those premises the employer or any represen- tative of the employer, that Labour Inspector must, after the entry and inspection and before leaving those premises, leave at those premises a written notice addressed to the employer.
That written notice must state— (a) (b) (c) (d) Except for the purposes of an Act specified in section 223(1), any Labour Inspector who inspects, or is supplied with a copy of, any document pursuant to section 229 must not disclose to any person any information obtained as a result of the inspec- tion of the document or the supply of the copy.
Compare: 1991 No 22 s 145 the identity of the person who entered the premises; and the fact that the person is a Labour Inspector; and the date and time of the entry; and the reasons for the entry.
(5) 234 Circumstances in which officers, directors, or agents of company liable for minimum wages and holiday pay This section applies in any case where a Labour Inspector commences an action in the Authority against a company to recover any money payable by way of minimum wages or holi- day pay to an employee of the company.
(1) 228 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 11 s 234 (2) Where, in any case to which this section applies, the Labour Inspector establishes on the balance of probabilities that the amount claimed in the action by way of minimum wages or holiday pay or both is, if judgment is given for that amount, unlikely to be paid in full, whether because— (a) (b) the company is in receivership or liquidation; or there are reasonable grounds for believing that the com- pany does not have sufficient assets to pay that amount in full,— the Authority may authorise the Labour Inspector to bring an action for the recovery of that amount against any officer, dir- ector, or agent of the company who has directed or authorised the default in payment of the minimum wages or holiday pay or both.
(3) Where, in any action authorised under subsection (2), it is proved that the officer, director, or agent of the company against whom the action is brought directed or authorised the default in payment of the minimum wages or holiday pay or both, that officer, director, or agent is with the company (and any other officer, director, or agent of the company who directed or authorised the default in payment) jointly and severally liable to pay the amounts recoverable in the action and judgment may be given accordingly.
In this section,— company has the meaning given to it by section 2(1) of the Receiverships Act 1993 holiday pay means any amount payable under the Holidays Act 2003 to an employee as pay for an annual holiday or public holiday minimum wages means minimum wages payable under the Minimum Wage Act 1983.

(4) (5) Nothing in this section affects any other remedies for the re- covery of wages or holiday pay or other money payable by a company to any employee of that company.
Section 234(4) holiday pay: amended, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).

229 Part 11 s 235 Employment Relations Act 2000 Reprinted as at 1 July 2011 235 Obstruction (1) A person commits an offence who, without reasonable cause,— (a) (b) obstructs, delays, hinders, or deceives; or causes to be obstructed, delayed, hindered, or de- ceived,— any Labour Inspector while the Labour Inspector is lawfully exercising or performing any power, function, or duty.
(2) A person who commits an offence against subsection (1) is li- able on conviction by the court to a fine not exceeding $10,000.

Representation 236 Representation (1) Where any Act to which this section applies confers on any employee the right to do anything or take any action— (a) (b) that employee may choose any other person to represent the employee for the purpose.
in respect of an employer; or in the Authority or the court,— (2) Where any Act to which this section applies confers on an employer the right to do anything or take any action— (a) (b) that employer may choose any other person to represent that employer for the purpose.

in respect of an employee; or in the Authority or the court,— (4) (3) Any person purporting to represent any employee or employer must establish that person’s authority for that representation.
The Acts to which this section applies are— (a) (b) (c) (d) (e) (f) (g) this Act: the Accident Compensation Act 2001: the Equal Pay Act 1972: the Holidays Act 2003: the Human Rights Act 1993: the Minimum Wage Act 1983: the Parental Leave and Employment Protection Act 1987: the Policing Act 2008: the State Sector Act 1988: (h) (i) 230 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 11 s 237 the Wages Protection Act 1983.
(j) Section 236(4)(b): substituted, on 1 April 2002, by section 337(1) of the Acci- dent Compensation Act 2001 (2001 No 49).

Section 236(4)(b): amended on 3 March 2010, pursuant to section 5(1)(b) of the Accident Compensation Amendment Act 2010 (2010 No 1).

Section 236(4)(d): substituted, on 1 April 2004, by section 91(2) of the Holidays Act 2003 (2003 No 129).

Section 236(4)(h): amended, on 1 October 2008, pursuant to section 130(4) of the Policing Act 2008 (2008 No 72).
Miscellaneous provisions 237 Regulations The Governor-General may from time to time, by Order in Council, make regulations for all or any of the following pur- poses: (a) (b) prescribing the forms for the purposes of this Act: prescribing the duties of officers of the Authority, of the Registrar of the court, and of any other officers or persons acting in execution of this Act: prescribing any act or thing necessary to supplement or render more effectual the provisions of this Act as to the conduct of proceedings before the Authority or the court: prescribing the procedure in relation to the conduct of matters before the Authority or the court: prescribing procedures in relation to the issue of sum- monses to witnesses and to the hearing of evidence on oath: prescribing charges or fees in relation to— (i) services provided by the chief executive under this Act; or (ii) the functions of the Authority or the court: providing for such matters as are contemplated by or necessary for giving full effect to the provisions of this Act and for its due administration.
(c) (d) (e) (f) (g) Compare: 1991 No 22 s 146 231 Part 11 s 237A Employment Relations Act 2000 Reprinted as at 1 July 2011 237A Amendments to Schedule 1A (1) The Governor-General may, by Order in Council, amend Schedule 1A to add to, omit from, or vary the categories of employees.

(2) An Order in Council must not be made under subsection (1) unless made on the recommendation of the Minister.
The Minister must not make a recommendation under subsec- tion (2) unless the Minister— (a) (3) (b) (c) has received from any person or organisation a request to amend Schedule 1A that specifies the grounds on which it is believed that the criteria in subsection (4) are met; and has received a report from the department that assesses the request; and has provided the department’s assessment to, and has consulted, such employers, employees, the representa- tives of such employers and employees, and such other persons and organisations, as the Minister considers ap- propriate; and is satisfied that the criteria in subsection (4) are met.
(d) The criteria are— (a) whether the employees concerned are employed in a sector in which the restructuring of an employer’s busi- ness occurs frequently: (b) whether the restructuring of employers’ businesses in the sector concerned has tended to undermine the em- ployees’ terms and conditions of employment: whether the employees concerned have little bargaining power.

(c) In this section, restructuring has the same meaning as in sub- part 1 of Part 6A.
Section 237A: inserted, on 1 December 2004, by section 68 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).

(4) (5) 238 No contracting out The provisions of this Act have effect despite any provision to the contrary in any contract or agreement.

Compare: 1991 No 22 s 147 232 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 11 s 244 239 New Schedule 3 substituted in Police Act 1958 Amendment(s) incorporated in the Act(s).
240 Consequential amendments The enactments specified in Schedule 5 are amended in the manner indicated in that schedule.

241 Repeals The enactments specified in Schedule 6 are repealed.
Transitional provisions 242 Enforcement of existing individual employment contracts Every individual employment contract within the meaning of (1) the Employment Contracts Act 1991 that is in force immedi- ately before the commencement of this Act continues in force according to its tenor and is enforceable in the Authority or the court.

Part 6 does not apply in relation to any individual employment contract to which subsection (1) applies.
(2) 243 Enforcement of existing collective employment contracts (1) Every collective employment contract within the meaning of the Employment Contracts Act 1991 that is in force immedi- ately before the commencement of this Act continues in force according to its tenor and is enforceable in the Authority or the court.

This section is subject to sections 244 to 246.


(2) 244 Existing collective employment contracts and collective bargaining Subject to section 246, a collective employment contract that is continued in force by section 243 is, for the purpose of sections 40(2) and 41 and Part 8, to be treated as if it were a collective agreement and as if the date of the expiry of that collective agreement were the earlier of— (a) the date on which the collective employment contract is expressed to expire; or 31 July 2003.
(b) 233 Part 11 s 245 Employment Relations Act 2000 Reprinted as at 1 July 2011 245 Existing procedures in relation to disputes and personal (1) (2) grievances Subject to sections 247 and 248, the grievance and disputes procedures that, under section 32 or section 44 of the Employ- ment Contracts Act 1991, are contained— (a) in any individual employment contract that is continued in force by section 242; or in any collective employment contract that is continued in force by section 243— (b) are, as from the commencement of this Act, of no effect.
Subject to sections 247 and 248,— (a) the parties to every individual employment contract that is continued in force by section 242; and the parties to every collective employment contract that is continued in force by section 243— (b) are, as from the commencement of this Act, subject to the problem resolution regime provided for in this Act.
246 Expiration of existing collective employment contracts (1) Where any employees who are covered by a collective em- ployment contract that is continued in force by section 243 are members of a union,— (a) an employer of employees covered by that collective employment contract; or a union whose members are bound by that collective employment contract— (b) may conduct a secret ballot of such of the employees covered by that collective employment contract as are members of the union for the purpose of determining whether a majority of those employees is in favour of the date of the expiry of that collective employment contract being 1 July 2001 or some other specified date (being a date after 1 July 2001 but before the date on which that collective employment contract is ex- pressed to expire).
Subject to subsection (3), where a majority of the valid votes recorded in any secret ballot conducted for the purposes of subsection (1) is in favour of the date of the expiry of the col- lective employment contract to which the ballot relates being 1 July 2001 or some other specified date, that date becomes, (2) 234 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 11 s 247 in relation to such of the employees of the employer as are immediately before that date members of the union in respect of which the ballot was conducted, the date of the expiry of that collective employment contract and that collective em- ployment contract is deemed to have been amended accord- ingly.
(3) Where the date of the expiry of a collective employment con- tract is changed under subsection (2), that collective employ- ment contract— (a) does not expire in respect of any employee of the em- ployer who is covered by the collective employment contract but who, immediately before the new date of the expiry of the collective employment contract, is not a member of the union in respect of whose members the ballot was conducted; but continues in force according to its tenor in relation to any employee to whom paragraph (a) applies; but if the union in respect of whose members the ballot was conducted was a party to the collective employment contract, that union ceases, on the new date of expiry, to be a party to the collective employment contract.
(b) (c) 247 Existing proceedings (1) All applications, actions, appeals, proceedings, and other mat- ters under any Act which, before the commencement of this section, have been made or referred under the Employment Contracts Act 1991 or any other Act amended or repealed by that Act or by this Act to the Court of Appeal or the Employ- ment Court or the Employment Tribunal, and which have not been determined or completed at the commencement of this section are to be determined or completed by the Court of Ap- peal, Employment Court, or Employment Tribunal, as the case may require, as if this Act had not been passed.
Subsection (1) is subject to sections 249 to 252.

Compare: 1991 No 22 s 182(1) (2) 235 Part 11 s 248 Employment Relations Act 2000 Reprinted as at 1 July 2011 248 Existing causes of action (1) Subject to the applicable period of limitation, the repeal by this Act of any existing Act or provision does not extinguish any existing cause of action.
(2) Where any cause of action has arisen before the commence- ment of this section under any of the provisions repealed by this Act and at that date no proceedings have been initiated in respect of that cause of action under those provisions, those provisions continue to apply to any proceedings commenced in respect of any such cause of action as if this Act had not been passed.

Subsection (2) is subject to sections 249 to 252 and subsec- tion (4).
(3) (4) Where any cause of action has arisen before the commence- ment of this section in relation to the dismissal of an employee, proceedings in the Employment Tribunal in respect of that cause of action,— (a) if commenced before the close of 30 June 2001, may be other than in accordance with section 113(1); but if commenced after 30 June 2001, must be in accord- ance with section 113(1) and Part 9.
(b) Compare: 1991 No 22 s 183(1), (2) 249 Employment Tribunal Despite the repeals effected by this Act, the Employment Tri- bunal is to remain in office until the close of 31 January 2001 for the purpose of— (a) determining or completing any proceedings under sec- tion 247 that are within the jurisdiction of the Employ- ment Tribunal: determining or completing any proceedings in relation to a cause of action of the type referred to in section 248 that are within the jurisdiction of the Employment Tribunal: exercising any other jurisdiction given to it by this Act,— (b) (c) and for those purposes the Employment Tribunal has all ne- cessary powers, and may exercise, despite the repeals effected by this Act, the powers conferred on the Employment Tribunal 236 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 11 s 250 by the repealed enactments, which apply accordingly with all necessary modifications.
Compare: 1991 No 22 s 186(1) 250 Exercise of powers of Employment Tribunal after 31 January 2001 (1) Despite the repeals effected by this Act, temporary members of the Employment Tribunal may be appointed from time to time under section 87 of the Employment Contracts Act 1991 and the provisions of that Act, including, in particular, the pro- visions of sections 84, 86, and 92, apply in relation to any tem- porary members so appointed as if that Act had not been re- pealed.
(2) An appointment under subsection (1) may be made before or after the close of 31 January 2001.
(3) Where any person appointed as a temporary member of the Employment Tribunal under subsection (1) is a person who, immediately before the commencement of this Act, held office as a member of the Employment Tribunal, the conditions of service of every such temporary member (except those as to his or her term of office) are to be the same as they would have been if both periods of service as a member of the Employment Tribunal had been continuous.
(4) Any temporary member of the Employment Tribunal who is in office after the close of 31 January 2001 by virtue of an appointment under subsection (1) has jurisdiction, in the name of the Employment Tribunal,— (a) to determine or complete any proceedings under section 247 that are not determined before the close of 31 Janu- ary 2001: to determine or complete any proceedings in relation to a cause of action of the type referred to in section 248 that are within the jurisdiction of the Employment Tribunal: to exercise any other jurisdiction conferred on any such temporary member by this Act.
(b) (c) (5) For the purposes of subsection (4), any temporary member of the Employment Tribunal to whom subsection (4) applies has, and may exercise, despite the repeals effected by this Act, the 237 Part 11 s 251 Employment Relations Act 2000 Reprinted as at 1 July 2011 powers conferred on the Employment Tribunal by the repealed enactments, which apply accordingly with all necessary modi- fications.
251 Exercise of powers of Authority before close of 31 January (1) (2) (b) 2001 The Chief of the Employment Tribunal may, at any time before the close of 31 January 2001,— (a) exercise, in the name of the Authority, such of the juris- diction and the powers of the Authority as the Chief of the Employment Tribunal thinks fit; or appoint any member or temporary member of the Em- ployment Tribunal to exercise, in the name of the Au- thority, in the period beginning on 2 October 2000 and ending with the close of 31 January 2001, such of the powers of the Authority as the Chief of the Employment Tribunal thinks fit; or both exercise jurisdiction and powers under paragraph (a) and make appointments under paragraph (b).
The Chief of the Authority may appoint any member or tem- porary member of the Employment Tribunal to exercise, in the name of the Authority, in the period specified in subsection (1)(b), such of the jurisdiction and the powers of the Author- ity as the Chief of the Authority thinks fit.

(c) (3) Any appointment made under subsection (1)(b) or subsection (2), unless sooner revoked by the Chief of the Employment Tribunal or the Chief of the Employment Authority, expires with the close of 31 January 2001.
252 Exercise by Authority of powers of Tribunal after 31 January 2001 Despite the repeals effected by this Act, the Chief of the Au- thority may from time to time appoint any member of the Au- thority— (a) to determine and complete, in the name of the Employ- ment Tribunal, any proceedings under section 247 that are not determined either before the close of 31 Janu- ary 2001 by the Employment Tribunal or after the close 238 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 11 s 253 (b) of 31 January 2001 by a temporary member of the Em- ployment Tribunal appointed under section 250: to exercise any other jurisdiction conferred on the Em- ployment Tribunal or any temporary member of the Em- ployment Tribunal by this Act.
253 Existing appointments (1) The person who immediately before 2 October 2000 holds of- fice as the Chief Judge of the Employment Court constituted by the Employment Contracts Act 1991 is, without further ap- pointment, deemed as from the commencement of that day to have been duly appointed as the Chief Judge of the Employ- ment Court under this Act.
The persons who immediately before 2 October 2000 hold of- fice as Judges (other than temporary Judges) of the Employ- ment Court constituted under the Employment Contracts Act 1991 are, without further appointment, deemed as from the commencement of that day to have been appointed as Judges of the Employment Court constituted under this Act.
(2) 239 Schedule 1 Employment Relations Act 2000 Schedule 1 Essential services Part A Reprinted as at 1 July 2011 ss 5, 90, 91 The production, processing, or supply of manufactured gas or natural gas (including liquefied natural gas).

The production, processing, distribution, or sale of petroleum, whether refined or not.
The production or supply of electricity or the operational man- agement of a State enterprise (within the meaning of section 2 of the State-Owned Enterprises Act 1986) that has electricity generation within the definition of the nature and scope of its business in its statement of corporate intent.

The supply of water to the inhabitants of a city, district, or other place.

The disposal of sewage.


The work of a fire brigade within the meaning of the Fire Service Act 1975 (but excluding the work performed by mem- bers of volunteer fire brigades).

The provision of all necessary services in connection with the arrival, berthing, loading, unloading, and departure of ships at a port.
The operation of— (a) a service for the carriage of passengers or goods by water between the North Island and the South Island or between the South Island and Stewart Island; or a service necessary for the operation of a service re- ferred to in paragraph (a).
(b) 240 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 1 Part A—continued (b) (b) The operation of— (a) an air transport service, being a service by aircraft for the public carriage of passengers or goods for hire or reward (but excluding an air topdressing service); or a service necessary for the operation of an air transport service referred to in paragraph (a).

The operation of an ambulance service for sick or injured per- sons.
The operation of— (a) a hospital care institution within the meaning of section 58(4) of the Health and Disability Services (Safety) Act 2001; or a service necessary for the operation of such an institu- tion.

Schedule 1 Part A clause 11: substituted, on 1 October 2002, by section 58(1) of the Health and Disability Services (Safety) Act 2001 (2001 No 93).

The manufacture or supply of surgical and dialysis solutions.
The manufacture or supply of a pharmaceutical that is for the time being listed in the pharmaceutical schedule under the New Zealand Public Health and Disability Act 2000.

Schedule 1 Part A clause 13: substituted, on 1 January 2001, by section 111(1) of the New Zealand Public Health and Disability Act 2000 (2000 No 91).

The operation of a residential welfare institution or prison.
The production of butter or cheese or of any other product of milk or cream and the processing, distribution, or sale of milk, cream, butter, or cheese or of any other product of milk or cream.

16 The provision of Police emergency response services as de- fined in clause 3 of Schedule 1C.

241 Schedule 1 Employment Relations Act 2000 Reprinted as at 1 July 2011 Part A—continued Schedule 1 Part A clause 16: added, on 1 October 2008, by section 121 of the Policing Act 2008 (2008 No 72).
Part B 1 2 The holding and preparation of sheep, cattle, goats, pigs, or deer for slaughtering, the slaughtering of such animals, and the subsequent processing of their meat and smallgoods for the domestic market or the export market.

The operation of meat inspection services associated with the slaughtering or supply of meat for domestic consumption.
Compare: 1991 No 22 Schedule 3 242 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 1A Schedule 1A Employees to whom subpart 1 of Part 6A applies ss 69C, 237A Schedule 1A: inserted, on 1 December 2004, by section 69 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
Employees who provide the following services in the specified sec- tors, facilities, or places of work: (a) cleaning services, food catering services, caretaking, or laun- dry services for the education sector (being the public and pri- vate pre-school, primary, secondary, and tertiary educational institutions): cleaning services, food catering services, orderly services, or laundry services for the health sector (being any hospital, as defined by the Hospitals Act 1957 and any hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992): cleaning services, food catering services, orderly services, or laundry services in the age-related residential care sector: cleaning services or food catering services in the public service (as defined in Schedule 1 of the State Sector Act 1988) or local government sector: cleaning services or food catering services in relation to any airport facility or for the aviation sector: cleaning services or food catering services in relation to any other place of work (within the meaning of the Health and Safety in Employment Act 1992).
(b) (c) (d) (e) (f) 243 Schedule 1B Employment Relations Act 2000 Reprinted as at 1 July 2011 Schedule 1B Code of good faith for public health sector Schedule 1B: inserted, on 1 December 2004, by section 69 of the Employment Relations Amendment Act (No 2) 2004 (2004 No 86).
s 100D 1 (1) Application This code applies to the following parties to an employment relationship in the public health sector: (a) (b) (c) district health boards: employees of district health boards: unions whose members are employees of district health boards: other employers to the extent that they provide services to district health boards or the New Zealand Blood Ser- vice: employees of the employers referred to in paragraph (d) to the extent that they are engaged in providing services to district health boards or the New Zealand Blood Ser- vice: unions whose members are employees referred to in paragraph (e): the New Zealand Blood Service: employees of the New Zealand Blood Service: unions whose members are employees of the New Zealand Blood Service.
(d) (e) (f) (g) (h) (i) (3) (2) However, to avoid doubt, subclause (1)(d) and (e) applies in relation to the provision of services only if the services are provided to a district health board or the New Zealand Blood Service in its role as a provider of services.
Before a district health board or the New Zealand Blood Ser- vice enters into an agreement or arrangement with another em- ployer for the provision of services to the district health board or the New Zealand Blood Service, the district health board or the New Zealand Blood Service must notify the employer that this code will apply to the employer in relation to the provision of those services.
(4) However, failure to comply with subclause (3) does not affect the validity of an agreement or arrangement referred to in that subclause.
244 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 1B 2 3 Purpose The purpose of this code is— (a) (b) to promote productive employment relationships in the public health sector: to require the parties to make or continue a commit- ment— (i) to develop, maintain, and provide high quality public health services; and to the safety of patients; and to engage constructively and participate fully and effectively in all aspects of their employment re- lationships: (ii) (iii) (c) to recognise the importance of— (i) (ii) collective arrangements; and the role of unions in the public health sector.
Interpretation In this code, unless the context otherwise requires,— good employer has the same meaning as in section 6(1) of the New Zealand Public Health and Disability Act 2000 health professional means— (a) an employee who provides services to patients as a health practitioner (as defined in section 5 of the Health Practitioners Competence Assurance Act 2003); and any other employee who works in a recognised clinical discipline providing services for the purpose of assess- ing, improving, protecting, or managing the physical or mental health of individuals or groups of individuals (b) industrial action means a strike or a lockout life preserving services means— (a) (b) crisis intervention for the preservation of life: care required for therapeutic services without which life would be jeopardised: urgent diagnostic procedures required to obtain infor- mation on potentially life-threatening conditions: crisis intervention for the prevention of permanent dis- ability: care required for therapeutic services without which permanent disability would occur: (c) (d) (e) 245 Schedule 1B Employment Relations Act 2000 Reprinted as at 1 July 2011 (f) urgent diagnostic procedures required to obtain infor- mation on conditions that could potentially lead to per- manent disability services— (a) (b) has the same meaning as in section 6(1) of the New Zealand Public Health and Disability Act 2000; and to avoid doubt,— (i) includes cleaning services, food catering ser- vices, laundry services, and orderly services; but does not include building construction services.
Schedule 1B clause 3 life preserving services paragraph (d): added, on 22 De- cember 2006, by clause 4 of the Employment Relations (Code of Good Faith for Public Health Sector) Order 2006 (SR 2006/395).

(ii) Schedule 1B clause 3 life preserving services paragraph (e): added, on 22 De- cember 2006, by clause 4 of the Employment Relations (Code of Good Faith for Public Health Sector) Order 2006 (SR 2006/395).
Schedule 1B clause 3 life preserving services paragraph (f): added, on 22 De- cember 2006, by clause 4 of the Employment Relations (Code of Good Faith for Public Health Sector) Order 2006 (SR 2006/395).

General General requirements In all aspects of their employment relationship, the parties must— (a) (b) In their employment relationship, the parties must— (a) engage constructively; and participate fully and effectively.
behave openly and with courtesy and respect towards each other; and create and maintain open, effective, and clear lines of communication, including providing information in a timely manner; and recognise the role of health professionals as advocates for patients; and (b) (c) (d) make time to meet as and when required— (i) to address not only the industrial issues between the parties but also issues facing the public health sector, the employer, and the employees; and 4 (1) (2) 246 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 1B (ii) (iii) to search for solutions that will result in produc- tive employment relationships and the enhanced delivery of services; and to ensure that any change is managed effectively; and (e) recognise the time and resource constraints that may af- fect their ability to participate fully, and make allow- ances for those constraints.
To enable employees and their unions to comply with sub- clause (1), employers must ensure that appropriate steps are taken in their workplaces to encourage, enable, and facilitate employee and union involvement.

The parties must use their best endeavours to resolve, in a con- structive manner, any differences between them.

Subclauses (2) to (4) do not limit subclause (1).

Obligation to be good employer Every employer must be a good employer.
Collective bargaining and collective agreements The parties must support collective bargaining, including multi-employer collective agreements, where it is practical and reasonable to do so.

The parties must, as far as practical and reasonable, support the definition of coverage that best recognises the parties’ commit- ment to collective employment arrangements.
Principles of the Treaty of Waitangi The parties must recognise and support Part 3 of the New Zealand Public Health and Disability Act 2000 which, in order to recognise the principles of the Treaty of Waitangi and with a view to improving health outcomes for Maori, provides mech- anisms to enable Maori to contribute to decision-making on, and to participate in the delivery of, health and disability ser- vices.
(3) (4) (5) 5 6 (1) (2) 7 247 Schedule 1B Employment Relations Act 2000 Reprinted as at 1 July 2011 8 9 Collective bargaining Agreement on clinical expert or other suitable person As part of the arrangement required under section 32(1)(a), the parties must make every endeavour to agree on a clinical expert or other suitable person for the purposes of clause 13(1).
Specific things employers must not do during collective bargaining During collective bargaining employers must not— (a) communicate directly with union members in relation to the collective bargaining; or negotiate with employees who are not union members with a view to undermining or influencing the collective bargaining; or attempt to discourage employees from joining or re- maining with the union; or contract out services with a view to undermining or in- fluencing the collective bargaining; or terminate or fail to renew a contract with another em- ployer who is providing public health services through its employees, with a view to undermining or influenc- ing any collective bargaining between the other em- ployer and its employees.
(b) (c) (d) (e) 10 Mutual obligations (1) During collective bargaining each party must— (a) (b) (c) give thorough and reasonable consideration to the other’s proposals; and not act in a manner that undermines the other or the authority of the other; and not deliberately attempt to provoke a breakdown in the bargaining; and (d) where appropriate, consider ways in which they may take into account tikanga Maori (Maori customary values and practices) in the bargaining.
If agreement cannot be reached or the collective bargaining is in difficulty, the parties must give favourable consideration to attending mediation without delay, and must consider third party decision-making.
(2) 248 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 1B (3) The parties must recognise that collective bargaining and col- lective agreements need to— (a) provide for the opportunity for participation of union officials, delegates, and members in decision-making where those decisions may have an impact on the work or working environment of those members; and provide for the release of employees to participate in decision-making where appropriate, acknowledging the key role of union delegates in the collective representa- tion of union members; and provide for union delegates to carry out their roles, in- cluding the time needed for communication and con- sultation with members, and for union delegate educa- tion.
(b) (c) Patient safety 11 General obligation for employers to provide for patient safety during industrial action During industrial action, employers must provide for patient safety by ensuring that life preserving services are available to prevent a serious threat to life or permanent disability.
(2) Contingency plans 12 (1) As soon as notice of industrial action is received or given, an employer must develop (if it has not already done so) a con- tingency plan and take all reasonable and practicable steps to ensure that it can provide life preserving services if industrial action occurs.
If an employer believes that it cannot arrange to deliver any life preserving service during industrial action without the as- sistance of members of the union, the employer must make a request to the union seeking the union’s and its members’ agreement to maintain or to assist in maintaining life preserv- ing services.
The request must include specific details about— (a) the life preserving service the employer seeks assistance to maintain; and (3) 249 Schedule 1B Employment Relations Act 2000 Reprinted as at 1 July 2011 (b) the employer’s contingency plan relating to that life pre- serving service; and the support it requires from union members.

(4) A request must be made by the close of the day after the date (c) of the notice of industrial action.
(5) As soon as practicable after the employer has made a request but not later than 4 days after the date of the notice of industrial action, the parties must meet and negotiate in good faith and make every reasonable effort to agree on— (a) the extent of the life preserving service necessary to provide for patient safety during the industrial action; and the number of staff necessary to enable the employer to provide that life preserving service; and a protocol for the management of emergencies which require additional life preserving services.
(6) An agreement reached between the parties must be recorded (b) (c) in writing.

Adjudication If the parties cannot reach agreement under clause 12(5) they must, within 5 days after the date of the notice of industrial action, refer the matter for adjudication by a clinical expert or other suitable person as agreed under clause 8.
The adjudicator must conduct the adjudication in a manner he or she considers appropriate and must— (a) receive and consider representations from the parties; and in consultation with the parties, seek expert advice if the adjudicator considers that it is necessary to do so; and attempt to resolve any differences between the parties to enable them to reach agreement and, if that is not possible, make a determination binding on the parties; and provide a determination to the parties as soon as pos- sible but not later than 7 days after the date of notice of industrial action.
(b) (c) (d) 13 (1) (2) 250 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 1B (3) (4) 14 (1) The parties must use their best endeavours to give effect to the determination.

The parties must bear their own costs in relation to an adjudi- cation.
Public comments Recognition of employees’ right to make public comments Employers must respect and recognise the right of their em- ployees to comment publicly and engage in public debate on matters within their expertise and experience as employees.

(2) However, this clause applies subject to clauses 15 to 17.
15 Employee must first raise matter with employer Before an employee exercises the right specified in clause 14(1) in relation to the operations of his or her employer, the employee must first— (a) (b) raise the matter with his or her employer; and provide a reasonable time for his or her employer to respond.
16 When employee may make public comments about employer’s operations If the employee is dissatisfied with his or her employer’s re- sponse or there is no response from his or her employer, the employee may exercise the right specified in clause 14(1) if the employee makes it clear that he or she is— speaking in a personal capacity; or (a) speaking on behalf of a union with its authority to do so.
(b) 17 18 Confidentiality When exercising the right specified in clause 14(1), an em- ployee must not breach patient confidentiality or professional confidentiality.

Rights of union not affected To avoid doubt, clauses 14 to 16 do not prevent a union from making public comments or engaging in public debate on any matter relating to the public health sector.
251 Schedule 1B Employment Relations Act 2000 Reprinted as at 1 July 2011 Continuity of employment (b) (c) Outsourcing or direct provision of services This clause applies if— (a) an employer is a district health board or the New Zealand Blood Service; and the employer obtains services from its employees; and the employer engages or arranges for another employer to provide some or all of those services— (i) (ii) to the employer (outsourcing); or direct to patients (direct provision).
The employees referred to in subclause (1)(b) who are affected by the outsourcing or direct provision are entitled to be em- ployed by the other employer on the same terms and conditions as applied to the employees immediately before the outsourc- ing or direct provision took effect.
(b) Change in provider of outsourced services This clause applies if— (a) a district health board or the New Zealand Blood Service has outsourced (within the meaning of clause 19(1)(c)(i)) the provision of services to it by another employer; and the agreement or arrangement under which the other employer provides those services comes to an end; and the district health board or the New Zealand Blood Ser- vice makes an agreement or arrangement with a new employer to provide some or all of those services to it.
The employees of the employer referred to in subclause (1)(b) who are affected by the outsourcing are entitled to be em- ployed by the other employer on the same terms and conditions as applied to the employees immediately before the agreement or arrangement referred to in subclause (1)(b) came to an end.
(c) Obligation to notify provisions of clauses 19 and 20 Before a district health board or the New Zealand Blood Ser- vice enters into an agreement or arrangement with a new em- ployer to which clause 19 or clause 20 applies, it must no- 19 (1) (2) 20 (1) (2) 21 (1) 252 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 1B tify the employer of the provisions of clause 19 or clause 20, whichever applies in the circumstances.
(2) However, failure to comply with subclause (1) does not affect the validity of an agreement or arrangement referred to in that subclause.

This clause is in addition to clause 1(3).

(3) 22 23 Remedying breaches of good faith Notice of breach If a party believes that another party has breached the duty of good faith in section 4, it must bring this to the attention of the party in breach at an early stage.
Obligation of party in breach A party in breach must— (a) if the breach can be made good, make good the breach by making every endeavour to restore the other party to the position the other party was in before the breach; or if the breach cannot be made good, provide an explan- ation to the other party.

(b) Transitional 24 (1) Transitional This code does not apply to anything done or any matter aris- ing before the commencement of the code.
(2) However, subclause (1) applies subject to subclauses (3) and (3) (4) (4).

Subclause (1) does not prevent the code applying in relation to— (a) a collective agreement entered into before the com- mencement of the code; or bargaining for a collective agreement that began before the commencement of the code.

(b) Clause 20 applies even though the agreement or arrangement referred to in clause 20(1)(b) was entered into before the com- mencement of the code.
253 Schedule 1C Employment Relations Act 2000 Reprinted as at 1 July 2011 Schedule 1C Code of good faith for employment relationships in relation to provision of services by Police ss 100F, 100G Schedule 1C: inserted, on 1 October 2008, by section 122 of the Policing Act 2008 (2008 No 72).
1 (1) Application This code applies to the following parties: (a) (b) (c) (d) the New Zealand Police (the Police): Police employees: service organisations: other employers to the extent that they provide services to the Police: employees of the employers referred to in paragraph (d) to the extent that they are engaged in providing services to the Police: unions whose members are employees referred to in paragraph (e) (other unions).
(e) (f) (3) (2) However, to avoid doubt, subclause (1)(d) and (e) applies in relation to the provision of services only if the services are pro- vided to the Police in its role as a provider of Police emergency response services.

Before the Police enters into an agreement or arrangement with another employer for the provision of services to the Po- lice, it must notify the employer that this code will apply to the employer in relation to the provision of those services.
(4) However, failure to comply with subclause (3) does not affect the validity of an agreement or arrangement referred to in that subclause.
Purpose The purpose of this code is— (a) to promote productive employment relationships in re- lation to the provision of services by the Police: to require the parties to make or continue a commit- ment— (b) 2 254 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 1C (i) (ii) (iii) to the safety of the public and Police employees; and to develop, maintain, and provide high quality policing services; and to engage constructively and participate fully and effectively in all aspects of their employment re- lationships: (c) to recognise the importance of— (i) (ii) collective arrangements; and the role of service organisations and other unions.
3 4 (1) (2) Interpretation In this schedule, unless the context otherwise requires,— industrial action means a strike by, or a lockout of, Police employees Police emergency response services means services provided by the Police that directly or indirectly enable maintenance of the Police’s effective response to calls for service where— (a) (b) people are injured or in danger; or there is a serious, immediate, or imminent risk to life or property; or a crime is being or has just been committed and the offenders are still at the scene or have just left service organisation has the same meaning as in section 55 of the Policing Act 2008.
(c) General General requirements In all aspects of their employment relationship, the parties must— (a) (b) In their employment relationship, the parties must— (a) engage constructively; and participate fully and effectively.
behave openly and with courtesy and respect towards each other; and create and maintain open, effective, and clear lines of communication, including providing information in a timely manner; and (b) 255 Schedule 1C Employment Relations Act 2000 Reprinted as at 1 July 2011 (c) recognise the role of Police employees as advocates for public safety; and (d) make time to meet as and when required— (i) (ii) (iii) to address not only the industrial issues between the parties but also issues facing the Police, the other employers, and the employees; and to search for solutions that will result in produc- tive employment relationships and the enhanced delivery of services; and to ensure that any change is managed effectively; and (e) recognise the time and resource constraints that may af- fect their ability to participate fully, and make allow- ances for those constraints.
To enable employees, service organisations, and other unions to comply with subclause (1), employers must ensure that ap- propriate steps are taken in their workplaces to encourage, en- able, and facilitate employee, service organisation, and other union involvement.

The parties must use their best endeavours to resolve, in a con- structive manner, any differences between them.

Subclauses (2) to (4) do not limit subclause (1).


Collective bargaining Agreement on suitable person As part of the arrangement required under section 32(1)(a), the parties must make every endeavour to agree on a suitable person for the purposes of clause 11(1).

Collective bargaining and collective agreements The parties must support collective bargaining where it is prac- tical and reasonable to do so.
The parties must, as far as practical and reasonable, support the definition of coverage that best recognises the parties’ commit- ment to collective employment arrangements.
(3) (4) (5) 5 6 (1) (2) 256 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 1C 7 Specific things employers must not do during collective bargaining During collective bargaining employers must not— (a) communicate directly with service organisation or other union members in relation to the collective bargaining; or negotiate with employees who are not service organisa- tion or other union members with a view to undermining or influencing the collective bargaining; or attempt to discourage employees from joining or re- maining with the service organisation or other union; or contract out services with a view to undermining or in- fluencing the collective bargaining.
(b) (c) (d) Mutual obligations 8 (1) During collective bargaining each party must— (a) (b) (c) give thorough and reasonable consideration to the other’s proposals; and not act in a manner that undermines the other or the authority of the other; and not deliberately attempt to provoke a breakdown in the bargaining.
(2) (3) If agreement cannot be reached or the collective bargaining is in difficulty, the parties must give favourable consideration to attending mediation without delay, and must consider third party decision-making.
The parties must recognise that collective bargaining and col- lective agreements need to— (a) provide for the opportunity for participation of service organisation, and other union, officials, delegates, and members in decision-making where those decisions may have an impact on the work or working environ- ment of those members; and provide for the release of employees to participate in decision-making where appropriate, acknowledging the key role of service organisation, and other union, dele- gates in the collective representation of their members; and (b) 257 Schedule 1C Employment Relations Act 2000 Reprinted as at 1 July 2011 (c) provide for service organisation, and other union, dele- gates to carry out their roles, including the time needed for communication and consultation with members, and for delegate education.
Public safety 9 Obligation for Police to provide for public safety during industrial action During industrial action, the Police must provide for public safety by ensuring that emergency response services are avail- able.
(2) Contingency plans 10 (1) As soon as notice of industrial action is received or given, the Police must develop (if it has not already done so) a contin- gency plan and take all reasonable and practicable steps to en- sure that it can provide Police emergency response services if industrial action occurs.
If the Police believes it cannot arrange to deliver Police emer- gency response services during industrial action without the assistance of members of a service organisation or organisa- tions, or other union or unions, the Police must make a re- quest to the relevant service organisation or other union seek- ing the service organisation’s, or other union’s, and its mem- bers’ agreement to maintain or to assist in maintaining Police emergency response services.
The request must include specific details about— (a) (3) the Police emergency response service the Police seeks assistance to maintain; and the Police’s contingency plan relating to that Police emergency response service; and the support it requires from service organisation, or other union, members.

(b) (c) (4) A request must be made by the close of the day after the date of the notice of industrial action.
(5) As soon as practicable after the Police has made a request, but not later than 4 days after the date of the notice of industrial 258 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 1C action, the parties must meet and negotiate in good faith and make every reasonable effort to agree on— (a) the extent of the Police emergency response service ne- cessary to provide for public safety during the industrial action; and the number of employees necessary to enable the Police to provide that Police emergency response service; and a protocol for the management of emergencies that re- quire additional emergency response services.
(b) (c) (6) An agreement reached between the parties must be recorded in writing.

11 (1) (2) Adjudication If the parties cannot reach agreement under clause 10(5) they must, within 5 days after the date of the notice of industrial action, refer the matter for adjudication by a suitable person as agreed by the parties under clause 5.
The adjudicator must conduct the adjudication in a manner he or she considers appropriate and must— (a) receive and consider representations from the parties; and in consultation with the parties, seek expert advice if the adjudicator considers that it is necessary to do so; and attempt to resolve any differences between the parties to enable them to reach agreement and, if that is not possible, make a determination binding on the parties; and provide a determination to the parties as soon as pos- sible but not later than 7 days after the date of notice of industrial action.
(b) (c) (d) (3) (4) The parties must use their best endeavours to give effect to the determination.

The parties must bear their own costs in relation to any adju- dication.
259 Schedule 1C Employment Relations Act 2000 Reprinted as at 1 July 2011 12 (1) (2) 13 Public comments during collective bargaining Recognition of service organisation members’ right to make public comments during collective bargaining The Police must respect and recognise the right of service or- ganisation members to comment publicly and engage in public debate during collective bargaining on matters relevant to the collective bargaining.

This clause applies subject to clauses 13 to 15.


Employee must first raise matter with employer Before a service organisation member exercises the right spe- cified in clause 12(1) in relation to the operations of the Police, the employee must first— (a) (b) raise the matter with the Police; and provide a reasonable time for the Police to respond.
14 When service organisation member may make public comments If the service organisation member is dissatisfied with the Po- lice’s response or there is no response from the Police, the ser- vice organisation member may exercise the right specified in clause 12(1) if the service organisation member makes it clear that he or she is— (a) (b) speaking in a personal capacity; or speaking on behalf of the service organisation with its authority to do so.
Confidentiality When exercising the right specified in clause 12(1), a service organisation member employee must not breach legal or oper- ational requirements of confidentiality in respect of individual cases, operations, or investigations.

Rights of service organisation not affected To avoid doubt, clauses 12 to 15 do not prevent a service or- ganisation, or other union, or its representatives from making public comments or engaging in public debate on any matter relating to the Police.
15 16 260 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 1C 17 Transitional provision This code applies to bargaining for any collective agreement which began before the commencement of the code.
261 Schedule 2 Employment Relations Act 2000 Reprinted as at 1 July 2011 Schedule 2 Provisions having effect in relation to Employment Relations Authority s 165 1 (1) (2) Construction of employment agreements and statutory provisions The Authority may, in performing its role, deal with any ques- tion related to the employment relationship, including— (a) any question connected with an employment agree- ment, being a question that arises in the course of any investigation by the Authority: any question connected with the construction of this Act or of any other Act, being a question that arises in the course of any investigation by the Authority.
(b) Subclause (1)(b) has effect in relation to a question even though that question concerns the meaning of this Act (being the Act under which the Authority is constituted) or of an Act under which the Authority operates in a particular case.
Compare: 1991 No 22 s 79(1)(h), (i) Representation of parties 2 (1) Any party or person involved in a matter before the Authority, or called upon to appear before the Authority, may— (a) (b) appear personally; or be represented— (i) (ii) (iii) by an officer or member of a union; or by an agent; or by a barrister or solicitor.

(2) The Authority may order any person to appear before it or be represented before it.
Compare: 1991 No 22 s 90 Privileged communications 3 (1) Where any party to any matter before the Authority is repre- sented by a person other than a barrister or solicitor, any com- munications between that party and that person in relation to those proceedings are as privileged as they would have been if that person had been a barrister or solicitor.
262 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 2 (2) 4 (1) (2) In subclause (1), party, in relation to any matter before the Authority, includes any person who— (a) (b) appears or is represented before the Authority; or under clause 2(2) is ordered to appear or be represented before the Authority.
Reopening of investigation The Authority may order an investigation to be reopened upon such terms as it thinks reasonable, and in the meantime to stay the effect of any order previously made.

The reopened investigation need not be carried out by the same member of the Authority.
Compare: 1991 No 22 s 91(1), (4) 4A Service outside New Zealand Any document relating to a matter before the Authority may be served out of New Zealand— (a) (b) Schedule 2 clause 4A: inserted, on 1 December 2004, by section 70 of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

by leave of the Authority; and in accordance with regulations made under this Act.
5 (1) (2) (3) Witness summons For the purposes of any matter before the Authority, the Au- thority may, on the application of any party to the matter, or of its own volition, issue a summons to any person requiring that person to attend before the Authority and give evidence.
The summons must be in the prescribed form, and may require the person to produce before the Authority any books, papers, documents, records, or things in that person’s possession or under that person’s control in any way relating to the matter.

The power to issue a summons under this clause may be ex- ercised by the Authority or a member of the Authority, or by any officer of the Authority purporting to act by the direction or with the authority of the Authority or a member of the Au- thority.
Compare: 1991 No 22 s 96 263 Schedule 2 Employment Relations Act 2000 Reprinted as at 1 July 2011 6 (1) (2) Witnesses’ expenses Every person attending the Authority on a summons, and every other person giving evidence before the Authority, is entitled, subject to subclause (2), to be paid, by the party calling that person, witnesses’ fees, allowances, and travelling expenses according to the scales for the time being prescribed by regu- lations made under the Summary Proceedings Act 1957, and those regulations apply accordingly.
The Authority may disallow the whole or any part of any sum payable under subclause (1).

(3) On each occasion on which the Authority issues a summons under clause 5, the Authority, or the person exercising the power of the Authority under subclause (3) of that clause, must fix an amount that, on the service of the summons, or at some other reasonable time before the date on which the witness is required to attend, is to be paid or tendered to the witness.
The amount fixed under subclause (3) of this clause is to be the estimated amount of the allowances and travelling expenses (but not fees) to which, in the opinion of the Authority or per- son, the witness will be entitled, according to the prescribed scales, if the witness attends at the time and place specified in the summons.
(4) (5) Where the Authority, on its own volition, issues a summons to any person under clause 5(1),— (a) that person, if he or she attends the Authority on that summons, is entitled, subject to subclause (2), to be paid by the department the amount of the witnesses’ fees, allowances, and travelling expenses specified in subclause (1); and the department must provide any amount fixed under subclause (3) as the amount required to be paid or ten- dered to that person.
(b) Compare: 1991 No 22 s 96 Evidence at distance For the purpose of obtaining the evidence of witnesses at a distance, the Authority or, while the Authority is not sitting, any member of the Authority, has all the powers and functions of a District Court Judge under the District Courts Act 1947.
7 (1) 264 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 2 (2) The provisions of the District Courts Act 1947 relating to the taking of evidence at a distance apply, with the necessary modifications, as if the Authority were a District Court.

(3) Despite subclause (2) evidence may, for the purposes of this Act, be taken at a distance by a Registrar of a District Court.
Compare: 1991 No 22 s 96 8 (1) Power to take evidence on oath The Authority may take evidence on oath and, for that purpose, any member of the Authority, or any other person acting under the express or implied direction of the Authority or a member of the Authority, may administer an oath.

(2) On any indictment for perjury it is sufficient to prove that the oath was administered in accordance with subclause (1).
Compare: 1991 No 22 s 96 9 10 (1) Party competent as witness Any party to a matter before the Authority is competent to give evidence in the matter and may be compelled to give evidence as a witness.
Compare: 1991 No 22 s 96 Power to prohibit publication The Authority may, in respect of any matter, order that all or any part of any evidence given or pleadings filed or the name of any party or witness or other person not be published, and any such order may be subject to such conditions as the Authority thinks fit.
(2) Where a matter is resolved by the Authority making a consent order as to the terms of settlement, the Authority may make an order prohibiting the publication of all or part of the contents of that settlement, subject to such conditions as the Authority thinks fit.
Compare: 1991 No 22 s 97 11 (1) Power to award interest In any matter involving the recovery of any money, the Au- thority may, if it thinks fit, order the inclusion, in the sum 265 Schedule 2 Employment Relations Act 2000 Reprinted as at 1 July 2011 for which judgment is given, of interest, at the rate prescribed under section 87(3) of the Judicature Act 1908, on the whole or part of the money for the whole or part of the period be- tween the date when the cause of action arose and the date of payment in accordance with the determination of the Author- ity.
(2) Without limiting the Authority’s discretion under subclause (1), in deciding whether to order the inclusion of interest, the Authority must consider whether there has been long-standing and repeated non-compliance with a demand notice.

Subclause (1) does not authorise the giving of interest upon interest.

Schedule 2 clause 11: substituted, on 1 April 2011, by section 39(1) of the Employment Relations Amendment Act 2010 (2010 No 125).
(3) 12 Power to proceed if any party fails to attend If, without good cause shown, any party to a matter before the Authority fails to attend or be represented, the Authority may act as fully in the matter before it as if that party had duly attended or been represented.

Compare: 1991 No 22 s 100 12A Power to dismiss frivolous or vexatious proceedings (1) The Authority may, at any time in any proceedings before it, dismiss a matter or defence that the Authority considers to be frivolous or vexatious.
In any such case, the order of the Authority may include an order for payment of costs and expenses against the party bringing the matter or defence.

Schedule 2 clause 12A: inserted, on 1 April 2011, by section 39(1) of the Em- ployment Relations Amendment Act 2010 (2010 No 125).

No invalidity for want of form No determination or order of the Authority, and no matter be- fore the Authority, is to be held bad for want of form, or be void or in any way vitiated by reason of any informality or error of form.
Compare: 1991 No 22 s 104(4) (2) 13 266 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 2 14 Withdrawal of matter (1) Where any matter is before the Authority, it may at any time (2) 15 (1) (2) 16 17 be withdrawn by the applicant or appellant.

For the purposes of subclause (1), a matter before the Author- ity must be treated as having been withdrawn if no action on the matter has been taken by a party or the Authority for at least 3 years.
Compare: 1991 No 22 s 88(8) Schedule 2 clause 14(2): added, on 1 April 2011, by section 39(1) of the Em- ployment Relations Amendment Act 2010 (2010 No 125).

Power to award costs The Authority may order any party to a matter to pay to any other party such costs and expenses (including expenses of witnesses) as the Authority thinks reasonable.
The Authority may apportion any such costs and expenses be- tween the parties or any of them as it thinks fit, and may at any time vary or alter any such order in such manner as it thinks reasonable.
Compare: 1991 No 22 s 98 Investigation to continue on change in Authority Where any change takes place in the member constituting the Authority, any investigation then in progress does not abate and is not affected, but is to continue and is to be dealt with by the Authority as if no change had taken place; but the Author- ity may require evidence to be retaken where necessary.
Compare: 1991 No 22 s 128 Urgency Where any person applies to the Authority to accord urgency to an investigation, the Authority must consider that application and may, if satisfied that it is necessary and just to do so, order that the investigation take place as soon as practicable.
Compare: 1991 No 22 s 118 267 Schedule 2 Employment Relations Act 2000 Reprinted as at 1 July 2011 Investigation not to abate by reason of death 18 (1) An investigation by the Authority does not abate by reason of any vacancy in the membership of the Authority, or of the death of any party to the matter being investigated.

In the latter case, the legal personal representative of the de- ceased party is to be substituted in the deceased party’s stead.
Compare: 1991 No 22 s 129 (2) 268 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 3 Schedule 3 Provisions having effect in relation to Employment Court s 191 1 (1) (2) Construction of employment agreements and statutory provisions The court may, in exercising its jurisdiction, hear and deter- mine any question related to the employment relationship, in- cluding— (a) any question connected with an employment agree- ment, being a question that arises in the course of any proceedings properly brought before the court: any question connected with the construction of this Act or of any other Act, being a question that arises in the course of any proceedings properly brought before the court.
(b) Subclause (1)(b) has effect in relation to a question even though that question concerns the meaning of this Act (being the Act under which the court is constituted) or of an Act under which the court operates in a particular case.
Compare: 1991 No 22 s 104(1)(f), (i) Appearance of parties 2 (1) Any party to any proceedings before the court, and any other person appearing before the court, may— (a) (b) appear personally; or be represented— (i) (ii) (iii) by an officer or member of a union; or by an agent; or by a barrister or solicitor.
(2) In any proceedings the court may allow to appear or to be represented any person who applies to the court for leave to appear or be represented and who, in the opinion of the court, is justly entitled to be heard; and the court may order any other person so to appear or be represented.
Compare: 1991 No 22 s 123 269 Schedule 3 Employment Relations Act 2000 Reprinted as at 1 July 2011 Privileged communications 3 (1) Where any party to proceedings before the court is represented by a person other than a barrister or solicitor, any communi- cations between that party and that person in relation to those proceedings and to the matter in issue (if it has been before the Authority) are as privileged as they would have been if that person had been a barrister or solicitor.
In subclause (1), party, in relation to proceedings before the court, includes any person who, under clause 2(2),— (a) is allowed to appear or be represented in those proceed- ings; or is ordered to appear or be represented in those proceed- ings.

(b) (2) 4 5 (1) Evidence Any party to any proceedings before the court may give and call evidence.
Compare: 1991 No 22 s 123(1) Rehearing The court has in every proceeding, on the application of an original party to the proceeding, the power to order a rehearing to be had upon such terms as it thinks reasonable, and in the meantime to stay proceedings.

(2) Despite subclause (1), a rehearing may not be granted on an application made more than 28 days after the decision or order, unless the court is satisfied that the application could not rea- sonably have been made sooner.
The application— (a) must be served on the opposite party not less than 7 clear (3) days before the day fixed for the hearing; and (b) must state the grounds on which the application is made.

Those grounds must be verified by affidavit.

The application does not operate as a stay of proceedings un- less the court so orders.

The rehearing need not take place before the Judge by whom the proceedings were originally heard.
Compare: 1991 No 22 s 125 (4) (5) (6) 270 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 3 5A Service outside New Zealand Any document relating to a matter before the court may be served out of New Zealand— (a) (b) Schedule 3 clause 5A: inserted, on 1 December 2004, by section 71 of the Em- ployment Relations Amendment Act (No 2) 2004 (2004 No 86).

by leave of the court; and in accordance with regulations made under this Act.
6 (1) Witness summons For the purposes of any proceedings before the court, the court may, on the application of any party to those proceedings, or of its own volition, issue a summons to any person requiring that person to attend before the court and give evidence at the hearing of those proceedings.

(2) A summons may not be issued under subclause (1) to a mem- (3) (4) 7 (1) (2) ber of the Authority.
The summons must be in the prescribed form, and may re- quire the person to produce before the court any books, papers, documents, records, or things in that person’s possession or under that person’s control in any way relating to the proceed- ings.

The power to issue a summons under this section may be ex- ercised by the court or a Judge, or by any officer of the court purporting to act by the direction or with the authority of the court or a Judge.
Compare: 1991 No 22 s 126(2)(a), (b) Witnesses’ expenses Every person attending the court on a summons, and every other person giving evidence before the court, is entitled, sub- ject to subclause (2), to be paid, by the party calling that per- son, witnesses’ fees, allowances, and travelling expenses ac- cording to the scales for the time being prescribed by regu- lations made under the Summary Proceedings Act 1957, and those regulations apply accordingly.
The court may disallow the whole or any part of any sum payable under subclause (1).
(3) On each occasion on which the court issues a summons under clause 6, the court, or the person exercising the power of the 271 Schedule 3 Employment Relations Act 2000 Reprinted as at 1 July 2011 court under subclause (4) of that clause, must fix an amount that, on the service of the summons, or at some other reason- able time before the date on which the witness is required to attend, is to be paid or tendered to the witness.
The amount fixed under subclause (3) is to be the estimated amount of the allowances and travelling expenses (but not fees) to which, in the opinion of the court or person, the wit- ness will be entitled, according to the prescribed scales, if the witness attends at the time and place specified in the summons.
Compare: 1991 No 22 s 126(2)(d) Evidence at distance For the purpose of obtaining the evidence of witnesses at a dis- tance, the court, or, while the court is not sitting, any Judge, has all the powers and functions of a District Court Judge under the District Courts Act 1947.

The provisions of the District Courts Act 1947 relating to the taking of evidence at a distance apply, with the necessary modifications, as if the court were a District Court.
(4) 8 (1) (2) (3) Despite subclause (2) evidence may, for the purposes of this Act, be taken at a distance by a Registrar of a District Court.

Compare: 1991 No 22 s 126(2)(f) 9 (1) Power to take evidence on oath The court may take evidence on oath, and for that purpose any Judge, or any other person acting under the express or implied direction of the court or a Judge, may administer an oath.
(2) On any indictment for perjury it is sufficient to prove that the oath was administered in accordance with subclause (1).

Compare: 1991 No 22 s 126(2)(g), (h) Party competent as witness Any party to proceedings before the court is competent to give evidence in those proceedings and may be compelled to give evidence as a witness.
Compare: 1991 No 22 s 126(2)(i) 10 272 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 3 11 Power to dispense with evidence In any proceedings the court may, if it thinks fit, dispense with any evidence on any matters on which all parties to the pro- ceedings have agreed.
Compare: 1991 No 22 s 126(3) 12 (1) Power to prohibit publication In any proceedings the court may order that all or any part of any evidence given or pleadings filed or the name of any party or witness or other person not be published, and any such order may be subject to such conditions as the court thinks fit.
(2) Where proceedings are resolved by the court making a consent order as to the terms of settlement, the court may make an order prohibiting the publication of all or part of the contents of that settlement, subject to such conditions as the court thinks fit.
Compare: 1991 No 22 s 109 13 (1) (2) Discovery The court may, in relation to discovery that relates to proceed- ings brought or intended to be brought in the court, or intended to be brought in the Authority, make any order that a Dis- trict Court may make under section 56A or 56B of the District Courts Act 1947; and those sections apply accordingly with all necessary modifications.
Every application for an order under section 56A or section 56B of the District Courts Act 1947 (as applied by subclause (1)) is to be dealt with in accordance with regulations made under this Act.

(3) Nothing in subclauses (1) and (2) limits the making of rules under section 212 or regulations under section 237.

Schedule 3 clause 13(1): substituted, on 1 April 2011, by section 39(2) of the Employment Relations Amendment Act 2010 (2010 No 125).
14 (1) Power to award interest Subject to subclause (2), in any proceedings for the recovery of any money, the court may, if it thinks fit, order the inclusion, in the sum for which judgment is given, of interest, at the rate prescribed under section 87(3) of the Judicature Act 1908, on the whole or part of the money for the whole or part of the 273 Schedule 3 Employment Relations Act 2000 Reprinted as at 1 July 2011 (2) 15 (1) (2) 16 17 period between the date when the cause of action arose and the date of payment in accordance with the judgment.
Subclause (1) does not authorise the giving of interest upon interest.

Schedule 3 clause 14(1): amended, on 1 April 2011, by section 39(2) of the Employment Relations Amendment Act 2010 (2010 No 125).

Power to dismiss frivolous or vexatious proceedings The court may, at any time in any proceedings before it, dis- miss a matter or defence that the court considers to be frivolous or vexatious.
In any such case, the order of the court may include an order for payment of costs and expenses against the party bringing the matter or defence before the Authority.

Schedule 3 clause 15: substituted, on 1 April 2011, by section 39(2) of the Employment Relations Amendment Act 2010 (2010 No 125).
Power to proceed if any party fails to attend If, without good cause shown, any party to proceedings before the court fails to attend or be represented, the court may act as fully in the matter before it as if that party had duly attended or been represented.
Compare: 1991 No 22 s 124 Proceedings not invalid for want of form No decision or order of the court, and no proceedings before the court, are to be held bad for want of form, or be void or in any way vitiated by reason of any informality or error of form.

Compare: 1991 No 22 s 104(4) 18 Withdrawal of proceedings (1) Where any matter is before the court, it may at any time be withdrawn by the applicant or appellant.
To avoid doubt, if a matter is withdrawn under subclause (1), it does not affect any other matters before the court that form part of the same proceedings.

Compare: 1991 No 22 s 106 Schedule 3 clause 18(2): added, on 1 April 2011, by section 39(2) of the Em- ployment Relations Amendment Act 2010 (2010 No 125).
(2) 274 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 3 19 (1) (2) 20 21 22 (1) (2) Power to award costs The court in any proceedings may order any party to pay to any other party such costs and expenses (including expenses of witnesses) as the court thinks reasonable.

The court may apportion any such costs and expenses between the parties or any of them as it thinks fit, and may at any time vary or alter any such order in such manner as it thinks rea- sonable.
Compare: 1991 No 22 s 108 Proceedings to continue on change in court Where any change takes place in the Judge constituting the court, any proceedings or inquiry then in progress do not abate and are not affected, but are to continue and are to be dealt with by the court as if no change had taken place; but the court may require evidence to be retaken where necessary.
Compare: 1991 No 22 s 128 Urgency Where any party to any proceedings applies to the court to accord urgency to the hearing of the proceedings, the court must consider that application and may, if satisfied that it is necessary and just to do so, order that the proceedings be heard by the court as soon as practicable.
Compare: 1991 No 22 s 118 Proceedings not to abate by reason of death Proceedings before the court do not abate by reason of the seat of any Judge being vacant for any cause whatever, or of the death of any party to the proceedings.

In the latter case, the legal personal representative of the de- ceased party is to be substituted in the deceased party’s stead.
Compare: 1991 No 22 s 129 275 Schedule 4 Employment Relations Act 2000 Reprinted as at 1 July 2011 Schedule 4 New Schedule 3 of Police Act 1958 Schedule 3 Procedure for conciliation and arbitration s 239 s 67(6) Amendment(s) incorporated in the Act(s).

276 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 5 Schedule 5 Enactments amended s 240 Accident Insurance Act 1998 (1998 No 114) Amendment(s) incorporated in the Act(s).
Anzac Day Act 1966 (RS Vol 33, p 13) Amendment(s) incorporated in the Act(s).

Arts Council of New Zealand Toi Aotearoa Act 1994 (1994 No 19) Amendment(s) incorporated in the Act(s).

Civil Aviation Act 1990 (RS Vol 32, p 1) Amendment(s) incorporated in the Act(s).

Clerk of the House of Representatives Act 1988 (1988 No 126) Amendment(s) incorporated in the Act(s).

Commerce Act 1986 (RS Vol 31, p 71) Amendment(s) incorporated in the Act(s).
Companies Act 1993 (1993 No 105) Amendment(s) incorporated in the Act(s).

Crown Research Institutes Act 1992 (1992 No 47) Amendment(s) incorporated in the Act(s).

Defence Act 1990 (1990 No 28) Amendment(s) incorporated in the Act(s).

Disabled Persons Community Welfare Act 1975 (RS Vol 26, p 143) Amendment(s) incorporated in the Act(s).

Education Act 1989 (RS Vol 34, p 17) Amendment(s) incorporated in the Act(s).
277 Schedule 5 Employment Relations Act 2000 Reprinted as at 1 July 2011 Environment Act 1986 (RS Vol 36, p 223) Amendment(s) incorporated in the Act(s).

Equal Pay Act 1972 (RS Vol 35, p 279) Amendment(s) incorporated in the Act(s).

Films, Videos, and Publications Classification Act 1993 (1993 No 94) Amendment(s) incorporated in the Act(s).

Fisheries Act 1996 (1996 No 88) Amendment(s) incorporated in the Act(s).
Government Superannuation Fund Act 1956 (RS Vol 21, p 209) Amendment(s) incorporated in the Act(s).

Hazardous Substances and New Organisms Act 1996 (1996 No 30) Amendment(s) incorporated in the Act(s).

Health and Disability Commissioner Act 1994 (1994 No 88) Amendment(s) incorporated in the Act(s).

Health and Disability Services Act 1993 (1993 No 22) Amendment(s) incorporated in the Act(s).

Health Reforms (Transitional Provisions) Act 1993 (1993 No 23) Amendment(s) incorporated in the Act(s).
Higher Salaries Commission Act 1977 (RS Vol 35, p 307) Amendment(s) incorporated in the Act(s).

Historic Places Act 1993 (1993 No 38) Amendment(s) incorporated in the Act(s).

Holidays Act 1981 (RS Vol 27, p 611) Amendment(s) incorporated in the Act(s).

278 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 5 Housing Restructuring Act 1992 (1992 No 76) Amendment(s) incorporated in the Act(s).

Human Rights Act 1993 (1993 No 82) Amendment(s) incorporated in the Act(s).
Immigration Act 1987 (RS Vol 33, p 163) Amendment(s) incorporated in the Act(s).

Industry Training Act 1992 (1992 No 55) Amendment(s) incorporated in the Act(s).

Judicature Amendment Act 1972 (RS Vol 22, p 489) Amendment(s) incorporated in the Act(s).

Land Transport Act 1998 (1998 No 110) Amendment(s) incorporated in the Act(s).

Legal Services Act 1991 (1991 No 71) Amendment(s) incorporated in the Act(s).

Maori Language Act 1987 (1987 No 176) Amendment(s) incorporated in the Act(s).
Maritime Transport Act 1994 (1994 No 104) Amendment(s) incorporated in the Act(s).

Minimum Wage Act 1983 (RS Vol 27, p 701) Amendment(s) incorporated in the Act(s).

Museum of New Zealand Te Papa Tongarewa Act 1992 (1992 No 19) Amendment(s) incorporated in the Act(s).

New Zealand Antarctic Institute Act 1996 (1996 No 38) Amendment(s) incorporated in the Act(s).
279 Schedule 5 Employment Relations Act 2000 Reprinted as at 1 July 2011 Oaths and Declarations Act 1957 (RS Vol 28, p 821) Amendment(s) incorporated in the Act(s).

Parental Leave and Employment Protection Act 1987 (RS Vol 27, p 753) Amendment(s) incorporated in the Act(s).

Police Act 1958 (RS Vol 26, p 669) Amendment(s) incorporated in the Act(s).

Privacy Act 1993 (1993 No 28) Amendment(s) incorporated in the Act(s).

Protected Disclosures Act 2000 (2000 No 7) Amendment(s) incorporated in the Act(s).
Retirement Income Act 1993 (1993 No 148) Amendment(s) incorporated in the Act(s).

Royal New Zealand Foundation for the Blind Act 1963 (RS Vol 37, p 811) Amendment(s) incorporated in the Act(s).

Social Security Act 1964 (RS Vol 32, p 625) Amendment(s) incorporated in the Act(s).

Social Welfare (Transitional Provisions) Act 1990 (RS Vol 32, p 883) Amendment(s) incorporated in the Act(s).

Southland Electricity Act 1993 (1993 No 147) Amendment(s) incorporated in the Act(s).
State Sector Act 1988 (RS Vol 33, p 715) Amendment(s) incorporated in the Act(s).

280 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 5 State-Owned Enterprises Act 1986 (RS Vol 33, p 813) Amendment(s) incorporated in the Act(s).

Transit New Zealand Act 1989 (1989 No 75) Amendment(s) incorporated in the Act(s).

Transport Accident Investigation Commission Act 1990 (1990 No 99) Amendment(s) incorporated in the Act(s).
Volunteers Employment Protection Act 1973 (RS Vol 21, p 897) Amendment(s) incorporated in the Act(s).

Wages Protection Act 1983 (RS Vol 27, p 905) Amendment(s) incorporated in the Act(s).

Waitangi Day Act 1976 (RS Vol 27, p 913) Amendment(s) incorporated in the Act(s).

281 Reprinted as at 1 July 2011 s 241 Schedule 6 Employment Relations Act 2000 Schedule 6 Enactments repealed Defence Amendment Act 1997 (1997 No 41) Amendment(s) incorporated in the Act(s).
Education Act 1964 (RS Vol 34, p 355) Amendment(s) incorporated in the Act(s).

Electricity Industry Reform Act 1998 (1998 No 88) Amendment(s) incorporated in the Act(s).

Employment Contracts Act 1991 (1991 No 22) Employment Contracts Amendment Act 1991 (1991 No 98) Equal Pay Amendment Act 1990 (RS Vol 35, p 304) Amendment(s) incorporated in the Act(s).

Equal Pay Amendment Act 1991 (RS Vol 35, p 304) Amendment(s) incorporated in the Act(s).
Government Superannuation Fund Amendment Act (No 2) 1992 (1992 No 61) Amendment(s) incorporated in the Act(s).

Holidays Amendment Act 1991 (RS Vol 27, p 635) Amendment(s) incorporated in the Act(s).

Human Rights Act 1993 (1993 No 82) Amendment(s) incorporated in the Act(s).

Immigration Amendment Act 1991 (RS Vol 33, p 340) Amendment(s) incorporated in the Act(s).

Minimum Wage Amendment Act 1987 (RS Vol 27, p 707) Amendment(s) incorporated in the Act(s).
282 Reprinted as at 1 July 2011 Employment Relations Act 2000 Schedule 6 Minimum Wage Amendment Act 1991 (RS Vol 27, p 708) Amendment(s) incorporated in the Act(s).

Parental Leave and Employment Protection Amendment Act 1991 (RS Vol 27, p 792) Amendment(s) incorporated in the Act(s).

Police Amendment Act 1991 (1991 No 29) Amendment(s) incorporated in the Act(s).

Police Amendment Act (No 2) 1992 (1992 No 68) Amendment(s) incorporated in the Act(s).
State Sector Amendment Act 1991 (RS Vol 33, p 715) Amendment(s) incorporated in the Act(s).

State Sector Amendment Act 1997 (1997 No 8) Amendment(s) incorporated in the Act(s).

Volunteers Employment Protection Amendment Act 1990 (1990 No 114) Amendment(s) incorporated in the Act(s).

Wages Protection Amendment Act 1991 (RS Vol 27, p 912) Amendment(s) incorporated in the Act(s).
283 Employment Relations Act 2000 Reprinted as at 1 July 2011 Employment Relations (Validation of Union Registration and Other Matters) Amendment Act 2001 Public Act Date of assent Commencement 2001 No 91 13 November 2001 see section 2 1 (1) (2) Title This Act is the Employment Relations (Validation of Union Registration and Other Matters) Amendment Act 2001.

In this Act, the Employment Relations Act 2000 is called “the principal Act”.
Part 1 Preliminary provisions Commencement This Act comes into force on the day after the date on which it receives the Royal assent.
Purpose The purpose of this Act is— (a) (b) to validate the registration of certain societies as unions under the principal Act, and to provide for matters re- lating to the validation; and to amend the principal Act to provide that the Employ- ment Relations Authority, in complying with the rules of natural justice, is not required to allow cross-exam- ination of parties or persons, but may, in its absolute discretion, permit such cross-examination.
2 3 284 Reprinted as at 1 July 2011 Employment Relations Act 2000 Part 2 Validation of union registration, and amendments relating to cross-examination Validation of union registration and related matters Registration of unions validated 4 (1) A society that the Registrar of Unions purported to register as a union before the commencement of the principal Act is deemed to be, and to have always been, registered as a union by the Registrar of Unions on 2 October 2000.
The registration of a society as a union on or after the com- mencement of the principal Act is not to be treated as unlawful or of no effect because the society’s application for registration as a union was made, or made and processed, before the com- mencement of the principal Act.

(2) 5 (1) Certificates of registration The certificate of registration of a society that section 4(1) ap- plies to must be read, and has effect, as if the date of registra- tion stated in the certificate were 2 October 2000.
If the certificate of registration of a society that section 4(1) or (2) applies to has been cancelled for the purpose of issuing a second certificate referred to in subsection (3), the certificate of registration must be treated as if it had not been cancelled.

(3) A second certificate of registration has no effect if the certifi- (2) cate was obtained— (a) (b) by a society that section 4(1) or (2) applies to; and after the commencement of the principal Act but before the commencement of this Act.
(4) The Registrar of Unions may— (a) issue a certificate of registration, showing a date of registration of 2 October 2000, to replace a certificate of registration referred to in subsection (1): issue a certificate of registration to replace a cancelled certificate of registration referred to in subsection (2) that has been destroyed: (b) 285 Employment Relations Act 2000 Reprinted as at 1 July 2011 (c) cancel a second certificate of registration referred to in subsection (3).
Acts not invalid because of pre-commencement application, processing, or registration Nothing done by any person (including the Crown, the Regis- trar of Unions, a society, or an employer) is to be treated as unlawful or of no effect because the Registrar of Unions pur- ported, before the commencement of the principal Act,— (a) to receive, or receive and process, an application by a society to be registered as a union; or to register a society as a union.
(b) No liability No person (including the Crown, the Registrar of Unions, a society, or an employer) is under any liability, and no com- pensation is payable to any person, because the Registrar of Unions purported, before the commencement of the principal Act,— (a) to receive, or receive and process, an application by a society to be registered as a union; or to register a society as a union.
(b) Penalties Nothing in this Act makes anything done or omitted to be done by a person before the commencement of this Act a breach of an employment agreement or the principal Act.

Costs Nothing in this Act affects the power of the Court of Appeal to make an order for costs, or affects any liability to pay costs, in the case of New Zealand Employers Federation Incorporated v National Union of Public Employees (NUPE) and Others (CA 32/01, 24 September 2001).
6 7 8 9 286 Reprinted as at 1 July 2011 Employment Relations Act 2000 Employment Relations Amendment Act (No 2) 2004 Public Act Date of assent Commencement 2004 No 86 28 October 2004 see section 2 1 (1) (2) 2 3 (1) (2) 73 (1) Title This Act is the Employment Relations Amendment Act (No 2) 2004.

In this Act, the Employment Relations Act 2000 is called “the principal Act”.

Commencement This Act comes into force on 1 December 2004.
Purpose This Part— (a) amends the provisions of the principal Act, particularly in relation to— (i) (ii) (iii) the duty of good faith; and collective bargaining; and the processes for resolution of employment rela- tionship problems; and (b) provides, in the principal Act, protection to employ- ees in situations where business undertakings are sold, transferred, or contracted out.
The purpose of the amendments referred to in subsection (1) is to promote and encourage behaviour that meets the object of the principal Act of building productive employment rela- tionships.

Transitional provisions The amendments made by this Act do not apply to anything done or any matter arising before the commencement of this Act.

(2) However, subsection (1) applies subject to subsections (3) to (20).
287 Employment Relations Act 2000 Reprinted as at 1 July 2011 (3) (4) (5) (6) (7) (8) The definition of coverage clause in section 5 of the principal Act (as substituted by section 7(1) of this Act) applies to a col- lective agreement whether it comes into force before or after the commencement of this Act.

Section 9(3) of the principal Act (as added by section 8 of this Act) applies to a collective agreement whether it comes into force before or after the commencement of this Act.
Section 20(5) of the principal Act (as added by section 9 of this Act) applies whether the discussion took place before or after the commencement of this Act.

Section 32(1)(ca) (as inserted by section 11 of this Act) applies whether the bargaining started before or after the commence- ment of this Act.

Section 33 of the principal Act (as substituted by section 12 of this Act) applies whether the bargaining started before or after the commencement of this Act.
Sections 50A to 50J of the principal Act (as inserted by section 14 of this Act)— (a) apply whether the bargaining started before or after the commencement of this Act; but do not apply in relation to grounds that exist before the commencement of this Act.

(b) (9) Section 56(1A) of the principal Act (as inserted by section 16 of this Act) applies whether an employee’s employment started before or after the commencement of this Act.
(10) Section 56A of the principal Act (as inserted by section 17 of this Act) applies whether the collective agreement came into force before or after the commencement of this Act.

(11) Section 59B(2) of the principal Act (as inserted by section 18 of this Act) applies whether the collective agreement came into force before or after the commencement of this Act.
(12) Section 59B(4) of the principal Act (as inserted by section 18 of this Act) applies whether the bargaining started before or after the commencement of this Act.

(13) Section 59C(2) of the principal Act (as inserted by section 18 of this Act) applies whether the collective agreement came into force before or after the commencement of this Act.
288 Reprinted as at 1 July 2011 Employment Relations Act 2000 (14) Section 59C(4) of the principal Act (as inserted by section 18 of this Act) applies whether the bargaining started before or after the commencement of this Act.

(15) Section 65A of the principal Act (as inserted by section 26 of this Act) applies whether the individual employment agree- ment started before or after the commencement of this Act.
(16) Section 78(3A) of the principal Act (as inserted by section 34 of this Act) applies whether the employer was told of the pro- posal to take employment leave before or after the commence- ment of this Act.

(17) Section 149(3)(ab) of the principal Act (as inserted by sec- tion 51 of this Act) applies to the agreed terms of settlement whether the agreed terms of settlement are signed before or after the commencement of this Act.
(18) Section 149(4) of the principal Act (as inserted by section 51 of this Act) applies whether the agreed terms of settlement are signed before or after the commencement of this Act.

(19) Section 150(4) of the principal Act (as inserted by section 52 of this Act) applies whether the decision was signed before or after the commencement of this Act.
(20) Section 194A of the principal Act (as inserted by section 65 of this Act),— (a) applies whether the exercise, refusal to exercise, or pro- posed or purported exercise of the statutory power of decision was made before or after the commencement of this Act; but does not apply if an application or proceedings of the type referred to in section 194(1) have been started.
(b) 289 Employment Relations Act 2000 Reprinted as at 1 July 2011 Employment Relations Amendment Act 2006 Public Act Date of assent Commencement 2006 No 41 13 September 2006 see section 2 Title This Act is the Employment Relations Amendment Act 2006.

Commencement The following provisions come into force 3 months after the date on which this Act receives the Royal assent: (a) subpart 2 of Part 6A of the principal Act (as inserted by section 6 of this Act); and sections 8 and 9 of this Act.
(b) The rest of this Act comes into force on the day after the date on which it receives the Royal assent.

Purpose The purpose of this Act is to substitute a new Part 6A of the principal Act to extend and clarify its application, especially to specified categories of employees in relation to subsequent contracting (sometimes referred to as succession contracts) and subcontracting.
Transitional provision Subsection (2) applies to restructurings (within the meaning of Part 6A of the principal Act as in force before the commence- ment of this section), the agreements for which are concluded before the commencement of this section even if the restruc- turings they relate to are to take effect after the commencement of this section.
Part 6A of the principal Act, as in force immediately before the commencement of this section, continues to apply to the restructurings as if this Act had not been passed.

Subpart 2 of Part 6A of the principal Act (as inserted by section 6 of this Act) does not apply in relation to any negotiations 1 2 (1) (2) 4 11 (1) (2) (3) 290 Reprinted as at 1 July 2011 Employment Relations Act 2000 (4) begun, or any tenders called for, before the commencement of that subpart.
The amendments to section 103(1) of the principal Act made by section 7 of this Act— (a) apply in relation to restructurings whether the agree- ments for the restructurings are concluded before or after the commencement of this section; but in relation to restructurings the agreements for which were concluded before the commencement of this sec- tion, apply to failures to comply with Part 6A of the principal Act that occurred only after the commence- ment of this section.
(b) 291 Employment Relations Act 2000 Reprinted as at 1 July 2011 Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 Public Act Date of assent Commencement 2008 No 58 9 September 2008 see section 2 1 2 (1) Title This Act is the Employment Relations (Breaks, Infant Feed- ing, and Other Matters) Amendment Act 2008.

Commencement This Act comes into force on the day after the date on which it receives the Royal assent.
(2) However, sections 6 and 9 come into force on 1 April 2009.
Part 1 Preliminary provisions Purpose The purpose of this Act is— (a) to insert new Parts 6C and 6D into the principal Act to— require facilities and breaks to be provided, so (i) far as is reasonable and practicable in the circum- stances, for employees who wish to breastfeed in the workplace or during work periods; and require employees to be provided with rest breaks and meal breaks; and (ii) (b) to make it a ground for a personal grievance for an em- ployee’s employment to be adversely affected because he or she is a member of a KiwiSaver scheme or a com- plying superannuation fund.
Application The amendments made by sections 7 and 8, to the extent that they relate to terms and conditions in employment agree- ments,— 4 5 (1) 292 Reprinted as at 1 July 2011 Employment Relations Act 2000 (a) (b) (c) apply to employment agreements entered into on or after 2 September 2008; and do not apply to employment agreements entered into before 2 September 2008; and apply to variations of employment agreements entered into before 2 September 2008, if the variations were made on or after 2 September 2008.
The amendments made by sections 7 and 8, to the extent that they relate to other matters, apply— (a) only to matters occurring on or after 2 September 2008; and (b) whether or not an employee’s employment agreement was entered into before 2 September 2008.
(2) 293 1 2 (1) (2) 4 Employment Relations Act 2000 Reprinted as at 1 July 2011 Employment Relations Amendment Act 2008 Public Act Date of assent Commencement 2008 No 106 15 December 2008 see section 2 Title This Act is the Employment Relations Amendment Act 2008.

Commencement This Act (except sections 6 and 7) comes into force on the day after the date on which it receives the Royal assent.

Sections 6 and 7 come into force on 1 March 2009.
Purpose The purpose of this Act is— (a) to provide when an employment agreement may spe- cify a trial period of 90 days or less, during which an employee can be dismissed and cannot bring a personal grievance or other legal proceedings in respect of the dismissal, subject to certain exceptions; and to repeal the amendments made by the Employment Relations (Breaks, Infant Feeding, and Other Matters) Amendment Act 2008 relating to employees’ member- ship of a KiwiSaver scheme or complying superannu- ation fund.
(b) 5 Application The amendments made by sections 6 and 7 apply to employ- ment agreements entered into only after the commencement of those sections.

294 Reprinted as at 1 July 2011 Employment Relations Act 2000 Employment Relations (Film Production Work) Amendment Act 2010 Public Act Date of assent Commencement 2010 No 120 29 October 2010 see section 2 1 2 Title This Act is the Employment Relations (Film Production Work) Amendment Act 2010.
Commencement This Act comes into force on the day after the date on which it receives the Royal assent.

Meaning of employee 4 (1)–(3) Amendment(s) incorporated in the Act(s).

(4) To avoid doubt, the amendments made by this section do not affect an employment agreement entered into before the com- mencement of this section.
295 Notes Employment Relations Act 2000 Reprinted as at 1 July 2011 Contents 1 2 3 4 General Status of reprints How reprints are prepared Changes made under section 17C of the Acts and Regulations Publication Act 1989 List of amendments incorporated in this reprint (most recent first) General This is a reprint of the Employment Relations Act 2000.

The reprint incorporates all the amendments to the Act as at 1 July 2011, as specified in the list of amendments at the end of these notes.
Relevant provisions of any amending enactments that contain transitional, savings, or application provisions that cannot be compiled in the reprint are also included, after the principal enactment, in chronological order.

For more information, see http://www.pco.parliament.govt.nz/reprints/.
Status of reprints Under section 16D of the Acts and Regulations Publication Act 1989, reprints are presumed to correctly state, as at the date of the reprint, the law enacted by the principal enactment and by the amendments to that enactment.

This presumption applies even though editorial changes authorised by section 17C of the Acts and Regulations Publication Act 1989 have been made in the reprint.
This presumption may be rebutted by producing the official volumes of statutes or statutory regulations in which the principal enactment and its amendments are contained.

How reprints are prepared editorial A number in the preparation of enacting words are of conventions reprints.

not included are For example, in Acts, followed the and 5 Notes 1 2 3 296 Reprinted as at 1 July 2011 Employment Relations Act 2000 Notes that are repealed or revoked are omitted.
provisions For a detailed list of see http://www.pco.parliament.govt.nz/editorial-conventions/ or Part 8 of the Tables of New Zealand Acts and Ordinances and Statutory Regulations and Deemed Regulations in Force.
the editorial conventions, 4 Changes made under section 17C of the Acts and Regulations Publication Act 1989 Section 17C of the Acts and Regulations Publication Act 1989 authorises the making of editorial changes in a reprint as set out in sections 17D and 17E of that Act so that, to the extent permitted, the format and style of the reprinted enactment is consistent with current legislative drafting practice.

Changes that would alter the effect of the legislation are not permitted.
A new format of legislation was introduced on 1 January 2000.

Changes to legislative drafting style have also been made since 1997, and are ongoing.

To the extent permitted by section 17C of the Acts and Regulations Publication Act 1989, all legislation reprinted after 1 January 2000 is in the new format for legislation and reflects current drafting practice at the time of the reprint.
In outline, the editorial changes made in reprints under the authority of section 17C of the Acts and Regulations Publication Act 1989 are set out below, and they have been applied, where relevant, in the preparation of this reprint: • omission of unnecessary referential words (such as “of this section” and “of this Act”) typeface and type size (Times Roman, generally in 11.5 point) layout of provisions, including: • • indentation position of section headings (eg, the number and heading now appear above the section) format of definitions (eg, the defined term now appears in bold type, without quotation marks) format of dates (eg, a date formerly expressed as “the 1st day of January 1999” is now expressed as “1 January 1999”) 297 • • • • Notes Employment Relations Act 2000 Reprinted as at 1 July 2011 • • • • • • • position of the date of assent (it now appears on the front page of each Act) punctuation (eg, colons are not used after definitions) Parts numbered with roman numerals are replaced with arabic numerals, and all cross-references are changed accordingly case and appearance of letters and words, including: • followed by small capital format of headings (eg, headings where each word formerly appeared with an initial capital letter letters are amended so that the heading appears in bold, with only the first word (and any proper nouns) appearing with an initial capital letter) small capital letters in section and subsection references are now capital letters • schedules are renumbered (eg, Schedule 1 replaces First Schedule), and all cross-references are changed accordingly running heads (the information that appears at the top of each page) format of amendments, and schedules of are rearranged into alphabetical order, chronological).
two-column schedules of consequential they rather than repeals (eg, 5 List of amendments incorporated in this reprint (most recent first) Holidays Amendment Act 2010 (2010 No 126): section 18 Employment Relations Amendment Act 2010 (2010 No 125) Employment Relations (Film Production Work) Amendment Act 2010 (2010 No 120) Accident Compensation Amendment Act 2010 (2010 No 1): section 5(1)(b) Employment Relations Amendment Act 2008 (2008 No 106) Policing Act 2008 (2008 No 72): sections 116(a)(ii), 120–122, 130(4) Real Estate Agents Act 2008 (2008 No 66): section 173 Employment Relations Amendment Act 2008 (2008 No 58) Employment Relations (Flexible Working Arrangements) Amendment Act 2007 (2007 No 105) and Other Matters) Infant Feeding, (Breaks, 298 Reprinted as at 1 July 2011 Employment Relations Act 2000 Notes Human Rights (Women in Armed Forces) Amendment Act 2007 (2007 No 16): section 6 Minimum Wage Amendment Act 2007 (2007 No 12): section 5(1) Employment Relations Amendment Act 2007 (2007 No 2) Employment Relations (Code of Good Faith for Public Health Sector) Order 2006 (SR 2006/395) Insolvency Act 2006 (2006 No 55): section 445 Employment Relations Amendment Act 2006 (2006 No 41) Land Transport Amendment Act 2005 (2005 No 77): section 95(6) Employment Relations Amendment Act (No 2) 2004 (2004 No 86) Employment Relations Amendment Act 2004 (2004 No 43) Holidays Act 2003 (2003 No 129): section 91(2) Supreme Court Act 2003 (2003 No 53): section 48(1) Health and Safety in Employment Amendment Act 2002 (2002 No 86): section 33 Remuneration Authority (Members of Parliament) Amendment Act 2002 (2002 No 54): section 4(1) Parental Leave and Employment Protection (Paid Parental Leave) Amendment Act 2002 (2002 No 7): section 6 Human Rights Amendment Act 2001 (2001 No 96): section 71(1) Health and Disability Services (Safety) Act 2001 (2001 No 93): section 58(1) Employment Relations (Validation of Union Registration and Other Matters) Amendment Act 2001 (2001 No 91) Accident Compensation Act 2001 (2001 No 49): section 337(1) New Zealand Public Health and Disability Act 2000 (2000 No 91): section 111(1) Public Finance Act 1989 (1989 No 44): section 65R(3) 12 Wellington, New Zealand: Published under the authority of the New Zealand Government—2011 299